Content creators and other rights holders are perfectly within their own right to demand money to not sue. There is nothing wrong with this since you have nothing to worry about if you were innocent. An offer to settle is exactly that, it’s saying, lets not go to court – if you did it, own up. If anything, this is the right thing to do. Look at it like this – would you prefer court papers to land on your doorstep with a court date?

I do believe content creators are struggling financially because of this. For example, my friend works at EMI and around 800 people just got laid off because profitability was down. The creative industry is struggling because people are stealing from them. Also, why does it matter if a content creator has not taken advantage of a particular advertising channel? That content is not there for you to take in the first place, regardless of what channel you choose to market it in.

Let’s not kid ourselves here, at least 70% of the population uses filesharing software and now they might get caught. Those people accused probably did it. 20 years down the line, I firmly believe that this sort of thing will be viewed as ‘just like’ walking into a shop and stealing.

I predict this will end badly for Davenports clients and I would guess that they are ultimately damaging the whole argument for copywright holders.

Draconian use of Copyright Acts by the entertainment industry possibly opens a Pandora’s Box.

The original Copyright Act of 1842, and the International Copyright Act, 1886, the Berne Convention and the Copyright Act 1911, the Copyright Act 1956, the Universal Copyright Convention, and the Copyright Designs and Patent Act 1988, were, in 1995 extended to grant copyright protection from 50 – 70 years, and were again amended and strengthened by The Copyright and Related Rights Regulations of 2003.

These law created the offences for which Napster, Pirate Bay and a whole host of individual domestic down-loaders have been successfully prosecuted.

The lobbyists of the film and entertainment industry by intensive, prolonged, aggressive and determined lobbying, have earned millions of dollars during the last ten years from their clients in order to convince the various lawmakers of their client’s copy rights. Universal, SonyBMG, EMI and Warner would appear to have been the largest contributors and will doubtless be the greatest beneficiaries. Both lobbyists and industry CEO’s correctly claim that millions of dollars worth of revenue have been lost to the industry because of piracy; the unlawful downloading of copyright material. The combined turnover of the film / movie and entertainment industries runs into billions, but any loss of revenue is a loss, and they have now proved, and are continuing to prove their point with regard to the Napster and Pirate Bay websites, various P2P (peer to peer) sites, and now hundreds, or possibly thousands, of private people are threatened with court action.

In their desire to prohibit the unlawful use of copyright material, and to impose drastic fines, and or imprisonment, on any and all offenders it is just possible that the entertainment lawyers may have overlooked the entertainment industry’s own use, possibly unauthorised, and7or illegal, of images of property or location or real estate which require Location Release Agreements; the use of shop fronts or advertising hoardings, which require Material or Trade-Mark Releases, and the inclusion of petrol pump, garage or other illuminated displays, or company vehicles and which display logos on the sides of vans, lorries, etc etc. which require similar Agreements. Model Releases are required for “extras”, who are willing or unwilling participants in a filmed or recorded image. Location Releases are also required for any images made from any third party property. Making a recording, a film, of the house next door, No 4 perhaps, from the garden of No 2, or No 6 or even No 46, or making this image from a hired vehicle, which is a third party property, or possibly a bus or train, or a hired scaffolding or crane or helicopter, constitutes a breach or infringement of copyright and various licences, permissions, agreements or contracts need to have been made prior to publication/showing or distribution of these images in any form.

According to the various Acts it seems that;
Without written confirmation of each separate permission in respect of the locations, models, materials and works all other acts are prohibited including, but not limited to, the following:
· reproduction of any kind in any medium.
· storage in any medium including extraction into any other medium.
· public performance, broadcast or display.
· rental, leasing or lending.
· extraction, manipulation or altering in any respect.
Therefore any showing of any film/movie in which the client’s property is shown; without a clearly defined contract covering such showings; is clearly an infringement of client’s copy rights.

Is it therefore possible that the large entertainment companies are using the criminal law to close pirate companies whilst at the same time, possibly infringing the rights of various individuals who, doubtless, have similar rights under these new laws.

The relevant provision states;
“A person who infringes copyright in a work by communicating the work to the public –
(a) in the course of a business, or
(b) otherwise than in the course of a business to such an extent as to affect prejudicially the owner of the copyright, commits an offence if he knows or has reason to believe that, by doing so, he is infringing copyright in that work.”

And it has been suggested that
“For a film company to have used a location, with or without a Location Release then subsequent use of the images of the location or property in a film/movie become subject to one or more of the above Copyright Acts”

The various Broadcasting Acts are also concerned with the unauthorised use of images; those without a location, trade-mark, material or model release(s) whilst The Human Rights Act 1988 is concerned with unauthorised use of personal images and model releases.

Any real or imagined action for infringement of copyright is of course subject to the various Laws of Limitation, or Statutes of Limitation, which, in most countries is a period of time of some six to eight years. The various Acts have determined that each subsequent publication of a copyright work requires a separate permission. Therefore the transfer of the original images from 35mm film stock; possibly in use until the 1970’s; to video tape, until the 90’s, to DVD, hard disc, laser disc, electronic media etc., all required a renewal of any existing contract or agreement, or the preparation of a new licence. Should any of these agreements be lacking then the film, company would appear to be in primary infringement of copyright.

Secondary infringement may well also have been perpetrated by various intermediaries; “soft targets”; cinemas, broadcasters, wholesalers, shops, distributors and agents, printers, producers of VHS / DVD etc., tapes and discs. Secondary infringement of copy rights, due to the strength of the laws brought into being by the entertainment industry, also carry unlimited fines and the possibility of incarceration.

Sub-titled, re-titled or dubbed films as well as digitally re-mastered or digitally coloured movies are obviously re-publications and therefore probably represent a further infringement.

The most recent developments in cinema entertainment encompass the codified hard drive distribution of films for digital projection in specially equipped cinemas. This will shortly be followed by live digital screening fed by fibre optic cable or satellite connections from a central distribution point to allow world-wide same-day release of the latest blockbuster, which is of course a further publication of any films made and stored on any other form of media.

Copyright Bernard Wallace,
Torre San’Angelo, Montone, PG, Italia, April 2009