BPI

The British Phonographic Industry (BPI), created in 1973, is the British record industry’s trade association whose principal aim is to fight copyright infringement through lobbying and inter-organisational collaboration.[1]

Issues

In the past several years, questions around copyright infringement, peer-to-peer (P2P) filesharing, the impact of digital media on the economy and creative innovation, and personal copying have have been debated by the Government and relevant organisations. With the music industry playing a large part in the creative and digital sector, the BPI have a particular interest in these issues. Their position on these various topics have been outlined in more detail below.

Lobby history

Background

The BPI have been particularly vociferous with the recent and accelerating growth in digital and online media, taking a hard line against more liberal concepts of copyright and intellectual property. Following the passing of a French copyright law in 2009, Chief Executive Geoff Taylor announced in a press release that “Britain’s creative industries must not lose out to those of other countries where copyright infringement is being dealt with.”[2] Indeed, the BPI endeavour to keep copyright law at the forefront of British politics.

Gowers Review

The Gowers Review was published in December 2006 having been appointed by Gordon Brown (then Chancellor of the Exchequer) to Andrew Gowers the previous December. Its purpose was to ‘conduct an independent review into the UK Intellectual Property Framework’.[3] The BPI’s initial response to the Gowers Review, in April 2006, on the matter of Copyright Extension, was welcoming whilst pushing the question: ‘Is the Government prepared to take steps to incentivise the investor in sound recordings?’[4] Shortly prior to the Review’s publication, which subsequently concluded on December 6 2006 that the current fifty year copyright period should not be extended further, the BPI called for the government to ignore the commissioned review. BPI Chairman Peter Jamieson asserted ‘that it was “the responses of the Treasury, DTI [Department of Trade and Industry] and DCMS [Department of Culture, Media and Sport] and not the recommendations of an independent report” that it was most interested in.’ Moreover, Jamieson insisted: “It's in the Government's power to ignore such a recommendation and they should do so.”[5] With the Review’s conclusions against the principles of the BPI’s, the latter ceased to value such recommendations.

Peer-to-peer (P2P) Sharing

In defence of music right holders, the BPI energetically take legal action against individuals who share music using online P2P websites. In July 2012, it was revealed by TorrentFreak that a leaked letter from music licensing firm PPL outlined a list of BitTorrent (i.e. P2P) websites that BPI are targeting. The PPL letter advised its members to inform the BPI’s legal team if they had not licensed their music to such sites. The BPI’s previous tactic was to ask Internet Service Providers (ISPs) to voluntarily block such sites before gaining a court order injunction against them. The letter implies a new layer to this strategy by consolidating which sites have not been given licences to share before taking the same action as before. However, as ispreview.co.uk has pointed out, with ISPs having little control over content, such blocks are relatively easy to bypass. Moreover, to the detriment of the BPI’s objectives, the publicity garnered with the court order only serves to advertise the site and thus boost visitors, as was seen when The Pirate Bay was given such treatment.[6]

Internet Service Provider (ISP) Liability

At the ISP Future Content Models and Enforcement Strategies Summit 2008, held in Kensington, London, the BPI reasserted their hard line towards ISPs. Kiaron Whitehead, general counsel for the BPI, declared: “ISPs have an obligation to work with us. The government must help facilitate that process.” “ISPs have a legal responsibility to enforce...first an educational letter, second temporary suspension, third cancel the account. Ultimately, it may be possible to implement a technical solution. ISPs need to test implementing that technical solution. For ISPs who refuse, we are left with one option - litigation.” Whitehead confidently insisted: “The government will assist us in one, talking; and two, putting in place legislation to ensure that ISPs are clear as to their responsibilities.”[7]

In a move that appears to consolidate the Kensington Summit, on July 24 2008, the BPI formed a joint memorandum of understanding with the government and the country’s six largest ISPs. The BPI stated: “All parties agree that the objective of this MOU is to achieve within 2 to 3 years a significant reduction in the incidence of copyright infringement as a result of peer-to-peer filesharing and a change in popular attitude towards infringement”.[8] A spokesman for the Industry asserted: “We have looked to ISPs to acknowledge their responsibility to help deal with illegal filesharing, engage in communicating the issue to their customers, and put in place procedures necessary to effectively tackle repeated unlawful filesharing.” “Achieving this would represent a significant step forward and demonstrate clearly the collective will that exists to tackle this serious issue.”[9]

Digital Britain

The Digital Britain report of June 2009 highlighted the government’s desire to be at the forefront of the world’s digital technology and the economy that arises from this. Debates around this necessarily involved the topics of copyright infringement as well as the music industry. Thus, the report was very much of concern to the BPI especially in terms of P2P filesharing.

Before the final report was published, the BPI’s press release on Digital Britain’s interim report asserted: “The Interim Report proposes targeted legal action against the most significant infringers but few people believe that the answer lies in suing customers. We believe that proportionate measures taken by ISPs would be more effective.”[10] However, the final report did not recommend the BPI’s preferred course of action and on the day of the document’s release, June 16 2009, Chief Executive Geoff Taylor criticised the government for this outcome: “Evidence shows that the Government’s ‘write and then sue’ approach won’t work.” Moreover, “[the] Government appears to be anticipating its failure by lining up backstop powers for Ofcom to introduce technical measures later. This digital dithering puts thousands of jobs at risk in a creative sector that the government recognises as the driver of the digital economy.”[11]

Nevertheless, the BPI seemed to successfully turn around this apparent failure in asserting the following week: “Amongst all the viewpoints on Digital Britain, it would be easy to miss that our industry has won a huge battle of principle. [The] Government has accepted our case that ISPs are the natural control point on the internet, with a responsibility to tackle illegal filesharing.”[12]

Digital Economy Act (DEA) Consultation on Draft Initial Obligation Code

Following the passing of the Digital Economy Act in April 2010 (see below), the DEA 2010 Consultation on Draft Initial Obligation Code was launched which the BPI produced a Limited Response to. An argument can be posited that ISPs are not directly responsible for alleged illegal activity on the internet by their users and should therefore not have to pay the costs incurred when obliged to act under the DEA. However, when the BPI was asked:

Question 3.1: Do you agree that Copyright Owners should only be able to take advantage of the online copyright infringement procedures set out in the DEA and Code where they have met their obligations under the Secretary of State’s Order under section 124 of the 2003 Act? Please provide supporting arguments.

The BPI responded: “The BPI strongly disagrees that Copyright Owners should be obliged to meet costs ISPs incur in meeting the obligations placed on ISPs under the Digital Economy Act.”[13]

In response to another question:

Question 6.1: Do you agree with the threshold we are proposing? Do you agree with the frequency with which Copyright Owners may make requests [to see the Copyright Infringement List (CIL)]? If not, please provide reasons. If you favour an alternative approach, please provide supporting evidence for that approach.

The BPI responded: “No. The Copyright Infringement List (CIL) should be comprised of those subscribers whose accounts have been detected as infringing repeatedly, i.e. twice,” and that “Copyright Owners should be able to make requests to see the CIL every month [as opposed to the proposed 3 month period].”[14] It can be argued that such proposals could potentially lead to innocent parents finding themselves internet-less as a result of their adolescent’s actions. Moreover, some dictionary definitions would suggest that the word ‘repeatedly’ implies several times as opposed to merely more than once.

Digital Economy Act (DEA)

What primarily resulted from the 2009 Digital Britain policy report was the Digital Economy Act, passed after much debate in April 2010. The BPI were very active in the ensuing discussions over the bill before it was passed.

Despite the conclusions of the June 2009 Digital Britain report, much to the BPI’s relief, the Government revealed that they were considering temporary internet suspension of filesharers, less than two months later. Taylor commented: “[The] Government realised that if you look at a problem of this scale, the measures it was putting forward were not going to be big enough.” Contrary to the notion that cutting off internet use is a punitive measure against those carrying out activities deemed illegal as well as the BPI’s more recent court injunction tactics, Taylor asserted: “No one has been proposing criminalising anyone.” [The] Government is not talking about disconnecting anyone, the debate is around temporary suspension of internet connections as a last resort.”[15] However, it is debatable whether temporarily suspending the internet connections of P2P filesharers would be more efficacious than suing filesharing individuals. Following a BPI survey into music downloading in November 2009, the BPI consolidated its support for the Government’s recent proposals to include “a mechanism in the digital economy bill to deal with threats other than P2P” in light of the rise in non-P2P downloading and the plateauing of P2P.[16]

The month before the bill’s passing saw much activity from the BPI. Not only did the BPI lobby for the bill but they also played an active part in writing some of it. In March 2010, it was revealed that text added to the draft was that of an almost word for word suggestion by the Industry. The proposed amendment to the 1988 Copyright, Designs and Patent Act, added by Liberal Democrat peer Lord Clement-Jones almost exactly as worded by the BPI, had the potential to block sites such as YouTube. As Jim Killock, Director of the Open Rights Group pointed out, the BPI were justified in making their proposal: “It’s the politicians who have been irresponsible here. It shows that they’re taking the BPI far too seriously.” Indeed, the four leading UK ISPs as well as companies such as Google, eBay and Yahoo claimed it threatened freedom of speech as well as potentially allowing sites to be blocked by allowing the bypassing of judicial procedures. [17]

The extent to which the BPI was concerned with the passing of the bill was made particularly clear when a leaked memo from the BPI Director of Public Affairs to record label executives was revealed in early March. Richard Mollet reported to fellow industry colleagues: “The Bill as a whole should still make it to the statute book, but the clause on non P2P infringement is imperilled by security forces concerns.”[18] Several days later, a survey revealed that piracy as a whole could put 1.2M jobs in danger across the EU and 0.5M in the UK. In response, Geoff Taylor asserted: “We’re approaching a tipping point where investment in our talent will dry up due to mass illegal downloading.” “That won’t just be a problem for the music industry, or even the entertainment sector as a whole. It will do serious damage to the UK economy and destroy huge numbers of jobs.” Indeed, the fact that the creative industries form a large portion of British GDP - 9% - cannot be dismissed lightly.[19]

At the Counter 2010 Conference shortly before the passing of the bill, Richard Mollet allegedly stated something along the lines of: “The Lords had scrutinised the digital economy bill enough, and there is no further need for debate.” While this was strongly denied by Adam Liversage, Director of Communications at the BPI, and those conference attendees asked did not recall Mollet saying such words (there was no recording), as Guardian journalist Cory Doctorow points out, the BPI simultaneously strongly rebutted these claims but equally failed to state the need for further debate over the bill, especially regarding the House of Commons.[20] Indeed, in Mollet’s leaked memo mentioned above, he stated: “As for the House of Commons...MPs..are already resigned to the fact that they will have a minimum input into the provisions from this point on, given the lack of time for detailed scrutiny.”[21] There is no denying that those that the BPI represent have much to gain with the passing of the bill, and equally, that while the BPI played an active role in writing part of the bill (with discussion and approval from the House of Lords), the House of Commons had comparatively little say on the finer details of the soon-to-be act.

Intellectual Property & Growth

Apart from the BPI’s avid support for rigorous copyright infringement laws, they have also been vocal in the wider debate around intellectual property, innovation and economic growth. In November 2010, the Independent Review of Intellectual Property and Growth by Professor Ian Hargreaves was commissioned by PM David Cameron and was subsequently published in May 2011.[22] In March 2011, the BPI gave its response to the Hargreaves Review: a challenge to its entire premise. The BPI stated the premise to be: “In order to drive further growth in the UK technology sector, it may be necessary to dilute the ability of creators to negotiate commercial value for the use of their creativity, by introducing a broad “fair use” exemption to UK Copyright Law. This premise appears to be based on a series of flawed assumptions.”[23] In other words, the BPI categorically rejects the concept of ‘fair use’ in the creative field. Subsequently, the BPI went through each alleged assumption stating the reasons why they should be rejected, two of which are outlined below.

Assumption 5: “The music industry has not developed a sufficient legal offer for consumers in the digital space.”[24]

The BPI claimed that “the primary role of the record label is in identifying, investing in and promoting musical talent, rather than the creation of music distribution platforms,” despite the fact that ‘music industry’ is not necessarily synonymous with ‘record label’. Moreover, they assert: “The major factor inhibiting innovation and growth in technology platforms using digital music is not the complexity of licensing but the effect of unchecked digital piracy and the distorting effects on investment of illegal-free, which substantially erodes the return on investment available to record labels and digital music platforms,” which somewhat avoids tackling the alleged assumption while focusing on the financial aspect of the review (that seems to concern the BPI the most, as seen above).[25]

Assumption 6: “That the US copyright framework, in particular the Digital Millennium Copyright Act and the “fair use” doctrine, provides protections from liability that are not available to platform businesses in the UK under the Digital Economy Act.”[26]

The BPI challenged: “The Digital Economy Act (DEA) was the result of years of analysis, consultation and discussion between industry and Government. It is not intended to deal with copyright liability of platform businesses. Rather it established new, proportionate enforcement mechanisms designed to discourage infringement from occurring in line with other countries committed to showing leadership in addressing online piracy. The liability of platform businesses is regulated in the UK not by the DEA but by the Copyright, Designs and Patents Act 1988, as amended by the E-Commerce Regulations 2002.”[27] Yet it is debatable whether the two issues can be separated; indeed, on many occasions (see examples above), the BPI have willingly linked copyright with digital economic growth (which platform business are increasingly a part of). Moreover, the part of the DEA that the BPI helped draft was precisely an amendment to the 1988 Act, which several platforms businesses themselves criticised (see above).

Format Shifting (Personal Copying)

In 2006 the BPI asserted that some leeway should be made to allow individuals to copy (format shift) their purchased music for their own personal use e.g. on their computer or media player. On the matter, a senior industry figure stated: “This is about the UK music industry responding effectively to the changing way music is consumed.”[28] At this time, ripping purchased CDs for individuals’ use was illegal contrary to the belief of 59% of British consumers, according to a 2006 National Consumer Council survey.[29] Understandably, the BPI agreed that such forms of music copying should be legalised so as “not [to] leave consumers in a legal quandary.”[30]

In late 2011, the Government Consultation on Copyright was initiated with the Summary of Responses published the following June. The Consultation covered the topic of private copying of material. Those who supported such activity were primarily consumers and technology companies using material legitimately acquired i.e. purchased. Moreover, many believed it necessary “to ensure the [private copying] exception would keep pace with technological advances.” While other respondents argued that private copying should not only include the individual but also “sharing within households or other private groups” as “much of this type of copying already [takes] place, with little or no intervention from rights holders” in causing “minimal harm to rights holders” making compensation unnecessary. Further, “that an exception that does not take account of such activity would not be practical.” However, in line with rights holders the BPI responded with concerns over the potential financial harm such an exception would cause: “The consultation has not set out convincingly why, when it is accepted that harm accrues to rights holders from a private copying exception in virtually all other EU countries, no such harm would accrue from private copying in the UK..”[31] However, the UK is in fact an exception to the rule with the majority of EU countries allowing personal copying.[32] Moreover, such a stance seems contrary to the BPI’s previous claims to allow personal music copying by individuals.

Copyright Consultation and Response to The Hargreaves Review

The Hargreaves Review is an independent review of how the IP framework supports growth and innovation. The government responded to the report and the BPI were heavily critical of this, their main contention being that “the Government accepted the Hargreaves' review arguments at face value without testing the economic assumptions within it.” There are a whole host of issues which the BPI do not believe require change and these are outlined in their response to the Hargreaves Review.

Orphan Works: The BPI agreed that certain works should be declared orphan provided, 1.) That the search is done thoroughly, and prior to the use of the work; 2.) The search process should be well documented; 3.) It should be done in good faith; and 4.) It should include making enquiries of BPI, PPL and PRS for Music. The group also highlights the need for a diligent search prior to declaring a work orphan because a lack of a diligent search brings a high probability those exploiting rights would use the loophole.

Private Copying Exception: The BPI rejected the need for this exception and in spite of the fact that BPI have long argued that consumers should be able to legally transfer music they have legitimately purchased to their own devices, the group did not agree with any of the options for this measure proposed by the Hargreaves Review. The group also voice worry regarding the existence of an exception alongside the growing cloud storage market.

Research Exception: Somewhat unsurprisingly, the group also rejected the need for a research exception as proposed by the Hargreaves Review, stating that if music is to be used in any educational setting, it should be licensed. The BPI argue that:

A research and private studying exception for music would also create significant new difficulties of enforcement against illegal downloading as a substantial number of people might be likely to claim the benefit of the exception even where they had copied music solely for their private benefit.

Parody Exception: The BPI opposed an exception on the grounds of parody and argue that satire and parody is a very culturally specific phenomenon, and that the success of US parody is perhaps not as lucrative as the consultation seems to believe. They do however, offer guidelines that the government should follow if they are to create an exception for this area. 1.) Is it a proportionate use of the work for the purpose of parody, i.e. is it an excerpt for reason of parody rather than a lift of a complete work? 2.)Is it intended for commercial gain, and if so is the creator properly credited and paid for their work? 3.) Is the parody likely to cause harm to the creator of the content? 4.)Is it a parody of the underlying work, as opposed to a use of the work as a vehicle to make an unrelated comment or to parody something else? 5.) Is more taken than necessary to make it a good parody? 6.) To what extent does it substitute for the original or harm its market? [33]

References

  1. ↑ http://www.bpi.co.uk/category/policy-and-lobbying.aspx
  2. ↑ http://www.bpi.co.uk/press-area/news-amp3b-press-release/article/uk-must-not-fall-behind-in-dealing-with-p2p-problem-says-bpi-7c-bpi-press-release.aspx
  3. ↑ http://webarchive.nationalarchives.gov.uk/+/http://www.hm-treasury.gov.uk/independent_reviews/gowers_review_intellectual_property/gowersreview_index.cfm
  4. ↑ http://www.hm-treasury.gov.uk/d/british_phonographic_industry_306_160kb.pdf
  5. ↑ http://www.thelawyer.com/bpi-pushes-government-to-ignore-gowers-review/123367.article
  6. ↑ http://www.ispreview.co.uk/index.php/2012/07/more-internet-piracy-sites-named-for-court-ordered-uk-isp-censorship.html
  7. ↑ http://www.iptegrity.com/index.php/digital-britain/141-volunteer-or-well-sue-you-says-bpi
  8. ↑ http://www.bpi.co.uk/our-work/protecting-uk-music/article/joint-memorandum-of-understanding-on-an-approach-to-reduce-unlawful-file-sharing.aspx
  9. ↑ http://www.guardian.co.uk/media/2008/jul/24/digitalmedia.piracy
  10. ↑ http://www.ifpi.org/content/library/BPI-response-to-digital-britain-interim-290109.pdf
  11. ↑ http://musically.com/2009/06/16/digital-britain-bpi-slams-governments-digital-dithering/
  12. ↑ http://www.bpi.co.uk/press-area/news-amp3b-press-release/article/geoff-taylor-commentary-on-digital-britain.aspx
  13. ↑ http://stakeholders.ofcom.org.uk/binaries/consultations/copyright-infringement/responses/bpi.pdf, p.1
  14. ↑ http://stakeholders.ofcom.org.uk/binaries/consultations/copyright-infringement/responses/bpi.pdf, pp.14-15.
  15. ↑ http://www.guardian.co.uk/business/2009/sep/06/internet-suspension-downloaders-law?INTCMP=SRCH
  16. ↑ http://www.guardian.co.uk/business/2009/dec/18/bpi-survey-filesharing-piracy-thriving & http://www.bpi.co.uk/press-area/news-amp3b-press-release/article/growing-threat-from-illegal-web-downloads.aspx
  17. ↑ http://www.guardian.co.uk/technology/2010/mar/11/digital-economy-bill-amendment-lobbyists
  18. ↑ http://www.boingboing.net/2010/03/12/leaked-uk-record-ind.html & http://craphound.com/BPDigitalEconomyBillweeklyminutes.pdf
  19. ↑ http://www.guardian.co.uk/business/2010/mar/17/filesharing-music-creative-industries-jobs-eu?INTCMP=SRCH
  20. ↑ http://www.guardian.co.uk/technology/2010/mar/29/digital-economy-bill-bpi-doctorow
  21. ↑ http://craphound.com/BPDigitalEconomyBillweeklyminutes.pdf
  22. ↑ http://www.ipo.gov.uk/ipreview.htm)
  23. ↑ http://www.ipo.gov.uk/ipreview-c4e-sub-bpi.pdf, p.4
  24. ↑ http://www.ipo.gov.uk/ipreview-c4e-sub-bpi.pdf, p.11
  25. ↑ http://www.ipo.gov.uk/ipreview-c4e-sub-bpi.pdf, p.11
  26. ↑ http://www.ipo.gov.uk/ipreview-c4e-sub-bpi.pdf, p.11
  27. ↑ http://www.ipo.gov.uk/ipreview-c4e-sub-bpi.pdf, p.11
  28. ↑ http://www.telegraph.co.uk/finance/2938253/Legalise-personal-music-copying-says-BPI.html
  29. ↑ http://www.consumerfocus.org.uk/news/uk-has-worst-copyright-laws-by-far
  30. ↑ http://www.telegraph.co.uk/technology/apple/7299505/Millions-of-iPod-fans-breaking-law-by-copying-CDs.html
  31. ↑ http://www.ipo.gov.uk/copyright-summaryofresponses-pdf, p.13
  32. ↑ http://www.publications.parliament.uk/pa/cm201213/cmselect/cmbis/367/367vw35.htmM
  33. ↑ http://www.ipo.gov.uk/response-2011-copyright-bpi.pdf

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