File sharing - can the music industry get the public to pay up?

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First published in The Times, 24 September 2009

By Mark Owen

Rock god versus pop diva — the music rights debate is producing some unexpected spectacles. Is file sharing creating a generation of people who expect never to pay for music or is it opening up a whole new audience who will save the industry?

Impressive-sounding statistics are deployed for both propositions but no one knows for sure. What cannot be denied is that for content creation to prosper it cannot be a purely unpaid activity. The Radiohead and Lily Allen stand-off is really about the best business model for the music industry in the digital era.

This is a fairly new debate — just a decade or so old — and much has changed in that time. The industry has moved on from its initial blunderings when it sought to preserve the £15 CD and to protect its margins rather than embrace fresh opportunities.

First it attacked MP3 players (which it failed to stop); then online music services (some of which it did, but that became a hydra); and finally its own consumers (which has been costly both in legal fees and in PR terms) lost the industry a lot of support, which it has yet to win back fully.

It has gradually changed the way it distributes music and as prices have fallen and the number of authorised services (such as Spotify, Omnifone, iTunes and others) have proliferated, so the chorus of criticism has reduced.

Lord Mandelson’s proposed law is intended to give those sorts of services some breathing space to become established. Perhaps most significantly, his intervention marks a change in the political mood. The process of government has so far done nothing to assist in finding a solution. It has weighed progress down with endless and repetitive consultations, quangos, a succession of minor ministers and the deadening regulatory language of “stakeholder groups” and “evidence-based solutions”. If he is true to his word and does take things by the scruff of the neck, he will have helped the debate to move on.

Some sort of three strikes rule is expected under which prolific file sharers will be warned before their internet access is cut off. There is likely to be much devil in the detail and inevitably some difficult cases.

Will it be used only for the most prolific file sharers or for anyone who shares a piece of music without authority? Will it be the ISPs who will be responsible for monitoring and contacting the users or the content owners? Who will pay for all this?

If this is a solution for music is it also appropriate for films, games and other forms of digital content, where the costs are different and that are consumed in different ways? How will you know who is misusing the system in a shared household? Will there be a system of appeal if your broadband connection is cut off? Web access is increasingly viewed as a form of human right. President Sarkozy’s attempt at a three strikes law was derailed for exactly this reason and Gordon Brown has said that access is as vital as water and gas — so it can not be cut off without due process.

Even if these issues are clarified then some artists remain worried that taking any steps will damage their relationship with their fans. They argue that we are in the midst of societal change and that we should all wait to see how this evolves before making knee-jerk attempts to stifle it. But if that change is so profound then regulation will be unlikely to prevent it.

The artists could make the better point that in return for these measures the Government should help in recalibrating the terms of the debate. A first step would be to repeal the present copyright law, which makes it illegal to make a home copy of content you have bought. In his brief tenure as IP Minister Lord Triesman made noises about repealing this anachronism but nothing happened. So today most music consumers remain copyright infringers in the eyes of the law.

The language of the debate could also change. Accusations of criminality, that file sharing is no different to shoplifting, have fallen on deaf ears. Undoubtedly there is some widescale infringement by criminals, but for the people the industry is trying to reach — the average music consumer — a better analogy is perhaps with speeding tickets. People aren’t put off wanting a car because of the occasional ticket, but they learn to drive within the rules.

Finally, once the music industry can unite around a set of proposals, it needs a consumer-friendly champion to be its public face. Just as it took a Jamie Oliver to bring the subject of school dinners into public debate, what the music world needs is for someone to do the same with file-sharing. If Lily Allen can find her own voice on this, she might just be it.