Copyright Protection and File Sharing in the Music Industry: A Legal Perspective

Copyright Protection and File Sharing in the Music Industry: A Legal Perspective

Anoumbuandem Benvolio Lekunze (PhD.)

Faculty of Laws and Political Science, University of Buea

DOI: https://dx.doi.org/10.47772/IJRISS.2025.905000412

Received: 15 May 2025; Accepted: 20 May 2025; Published: 19 June 2025

ABSTRACT

The music industry experiences huge financial losses every year because of digital music downloads and sharing. Many musicians are facing difficulties to sell their albums and have resorted to other means to deal with their work. Because of this, it is important to embark on a research that explores how copyrights can be protected in the music industry in relation to file sharing. The problems identified are difficulties by governments to control indiscriminate file sharing, difficulties to monitor the content that is shared and the inadequacy of law to protect authors rights in file sharing related violations in the music industry. The methodology adopted is qualitive with the use of the doctrinal method. The research is timely because of the constant rise and threats posed by new online platforms and social media that has caused music sharing on such platforms to go out of control. The research highlights the weaknesses of the law to ensure the protection of copyrights and file sharing in the music industry. The findings of this research are beneficial to the legislator, consumers of digital music, the music industry and information technology staff. It is also beneficial to students of law, computer science and scholars who intend to carry out further research in the area. The findings reveal that there is constant drop in the revenue of the music industry because of indiscriminate file sharing practices. The findings also reveal that governments encounter difficulties to regulate illegal copying of music files because of economic, legal and political interests. The findings further reveal that it is difficult to use only the law to regulate copyrights violation in the music industry as a result of file sharing. That is why it is recommended that a non-commercial use levy should be imposed on all file sharing hard and software that aids copying, reproduction and distribution. That national laws should also be revised to align with international treaties on the same subject. That countries should envisage provisions of music file sharing in their national legislations. It is further recommended that a rigid tax system should be fixed for recording devices by using an economic approach. This approach can jointly be used with a non-commercial use levy to ensure that authors earn what they are due.

Keywords: Copyright, Protection, File sharing, Music, technology

INTRODUCTION

Electronic communication technology has facilitated the way people communicate and use the works of others to derive satisfaction. It has provided consumers with wide access to a variety of works at lower cost and speed over long distances. Musicians no longer enjoy the monopolistic distribution of their works and consequently are faced with other challenges. They may go around these challenges by raising the fares of concerts, relying on streaming and raise the sales prices of their albums. This is to make up for what is lost because of file sharing. Authors of other works like books, films and software are also suffering losses because of file sharing. It is difficult to effectively control file sharing due to the nature of cyberspace communications coupled with the dynamism of technology. The same technology used in producing music may be circumvented and used in an unfair manner.

The first copyright law was enacted in 1790 in Great Britain under the Statute of Anne.[1]  The Statute granted copyrights to authors of maps, charts and books for a period of 14 years, renewable for an additional period of  4 years. The scope and duration of copyright interest has widened over time because of the evolution of technology. During the 1800s, the statute of Anne was modified several times. It expanded its scope to include prints and engravings, musical compositions, public performances of dramatic works, photographs, paintings, drawings etc. In 1909, the copyright law was extensively revised, and copyrights were extended to all the writings of an author.[2] The implication of this has extended copyrights to include aspects of music and motion pictures since they are also written before their performance.

Legislation to enforce author’s rights is difficult to implement becauase electronic file sharing in cyberspace has no geographical boundaries. The way digital music is shared by distributing, reproducing, and making available to the public is of great concern.[3] Copyrights are most often disregarded by consumers of digital music even though some international conventions and national laws lay emphasis on copyrights.  This disregard is rampant because of technical possibilities that users may have to download and share files. Because of this technicality, copyrights violators have often gone free with consequential losses to the music industry. It was estimated for example in 2021 by Marie-Therese Huppertz^[4] that in western europe, 37% of packaged software was pirated with rates ranging from 25% in the UK to 64% in Greece with a total estimated approximate loss of $10,97 billion.  Stan Jiebowitz^[5] also observed that the sales of CDs dropped because of file sharing amongst peers. He further noted that music was downloaded 350,000,000 times on Napster and KaAZaA before they were closed. Music was also downloaded 125,000,000 times on Morpheus and 75.000.000 times on Imesh.

Furthermore, Neil Weinstock Netanel also gave statistics for 2003 that showed that during September 2003, over 20 million Audio files as many as half a million video files were being exchanged daily.^[6]  This huge impact can be attributed to downloading that has gradually led to the substitution of the purchase of original compact disc (CD) songs. This has invariably led to the violation of some copyrights of authors.  It is important to understand the meaning of copyright before continuing the analysis in the music industry. The Black’s law dictionary defines copyright as a property right in an original work of authorship fixed in any tangible medium of expression, giving the holder the exclusive right to reproduce, adapt distribute, perform and display the work.[7]  It further emphasize on the protection of copyrights as a fundamental aspect to ensure adequate compensation to authors for their copyrighted works of art particularly in file sharing.

Although file sharing may have a positive effect in the music industry, it can cause authors to loss valuable effort, time, and profits if it is carried out in an abusive manner with the use of sophisticated software. It is for this abusiveness that some peer-to-peer file sharing networks can still be held liable as was in the case of MGM Studios, Inc. v. Grokster, Ltd.[8] Where the U.S supreme court held that distributors of peer-to-peer software could be liable for infringing third-party copyrights if they encourage infringement. But there are several exceptions in the file sharing process that are legally allowed under certain rights as seen in the World Intellectual Property Organization (WIPO) treaty and the Bern convention. These exceptions are the right to reproduce, distribute and make available to the public.

METHODOLOGY

The methodology adopted is qualitative with the use of the doctrinal method. It involves content analysis of both primary and secondary data in the relevant domain. It adopts an analytical approach in interpreting the protection of copyrights in the music industry in relation to file sharing. International treaties dealing with copyrights and other legislation is the source of primary data used. Secondary data used are textbooks, journal articles and internet sources.

The Nature of file sharing

Brien Posey describes File sharing as the public or private sharing of files or folders on a computer connected to a network.[9] Meanwhile, the Cambridge advanced learner’s dictionary defines file sharing as the practice of distributing computer files like images, films or music among several computers. It involves; transferring digital files from one computer to another, distributing and making files available to other users, providing access to users with the ability to view, reproduce and edit the contents of files shared. Such files may be stored in the hard drives of computers or other electronic devices. There are various ways that can be used in sharing music files. Although most of the earlier ways are used less today, a few of them can be mentioned. Before the introduction of the internet, files could be shared through removable media by storing and transmitting by physical means. This was done by saving files on devises like floppy disc, compact disc. Other ways are through file transfer protocol (FTP), Usenet, Napster, Gnutella, kaza, BitTorrent etc. Nowadays, music file sharing is done mostly through social media platforms, YouTube and communication protocols like WhatsApp, Signal, Electronic mails etc.

The complexities of file sharing and controllability

File sharing allows several people to use the same file by being able to read, view it, write to, modify it, copy it, or print. File sharing is a phrase used to denote the sharing and exchange of data through communication networks by many peers on like sharing files via a single server like the file transfer protocol (FTP) server. This is done by reducing possible obstructing traffic on the sever and loads are increased on all peers. The Domain Name System (DNS) is an example of a system that blends sharing and networking with a hierarchical model of information ownership. The way that DNS functions is directly applicable to contemporary data sharing applications carried out through bandwidth communications.^[10]

The exponential growth of consumer broadband and the explosion of file sharing popularity came with the advent of Napster.^[11] Major record labels propagated for the closure of Napster which was done in late 2001. It was observed in 2001 by Pr Jeremy Reyes that within each week, there are over one billion downloads of music files alone and over 60 million Americans additionally above the age of twelve have downloaded music online.  He noted that while many Americans under eighteen have downloaded, half of them are heavy users. It was noticed that only a fifth of those aged 35-44 have downloaded files. The information further reveals that among the United States of America (U.S) adult citizens, downloads have doubled since 2000. The apparent reason for this was the creation of the world wide web (www) by Tim Berners-Lee that was introduced to the public in 1989 and became widely used from 2001 to carry out different types of transactions.

The complexity of the electronic file sharing process as elucidated by Pr. Jeremy Reyes,^[12]  demonstrates how difficult it can be to control the process. In his example of file sharing communications, if for instance host A sends a file that can be arbitrarily divided into 10 data chunks, X can join and download chunks 1,2, and 3.  Y can also join and instead of connecting to A to get chunks 1,2, and 3, Y will connect to X and download the chunks from him, while X continues to download from A receiving chunk 4. In the process of downloading content from X, Y may download a single chunk 5 from A that X does not yet have. Y would then share this chunk to X, and X would respond by sharing new chunks downloaded from A to Y. Further along in the lifetime of this torrent yet another peer may come along and download from the current peers who have partial datasets before attempting to retrieve non-replicated data from the original seed.

The problems and misconceptions of copyrights protection in relation to file sharing in the music industry

Sharing music is not illegal perse. It becomes problematic when authors can no longer effectively earn the revenues that they deserve because of unfair use through reproductive piracy for commercial purposes.[13] ‘‘Fair use’’ is a term that has been subjectively construed by different courts depending on the circumstances. For instance, in Campbell v. Acuff-Rose Music, Inc.,[14] The U.S supreme court recognized that parody[15] could qualify as fair use, even if it was commercially motivated. Conversely, fair use may not apply even under the exceptions of the law if the author’s original right to control the first public appearance is infringed. This position was reaffirmed in Harper & Row, Publishers, Inc. v. Nation Enterprises.[16]

One of the major problems in the music industry is that its revenues have fallen drastically since file-sharing networks were first established in 1999. Consumers like to download copies of music files online and copy without paying author’s rights for the first copy.[17] Technology allows for copying which makes it practically difficult to stop the violation of author’s rights in the music industry. There is also a problem of applying legal rules that can stop the violation of author’s copyrights because of the nature of electronic communications and the peculiarities of every legal system. This is more so because electronic communications are capable of traversing a multitude of different legal systems with different legal norms that may be difficult to apply in different cases. Therefore, laws maybe insufficient to solve the issue. Other alternatives like technology and economic approaches may be used jointly to protect copyrights in the music industry. On the other hand, opinion holds that sharing can instead boost the revenues of authors in streaming audio platforms like YouTube or pay per-view channels. This can be done by focusing on building a channel or creating original content on a platform.[18] But it can still be argued as was held in the case of ABC v. Aereo, Inc[19] that streaming services could infringe on public performance rights.

Fabio Daurte (April 2025)[20]  a research associate at Exploding Topic analyzed the digital average revenue per user for music download. He focused mostly on the music streaming effect on revenues and also jointly predicted the revenues per user for digital music download for a period of nine years. His analysis on the average revenues between 2019 to 2027 indicates that revenues in the music industry declines based on the number of music files downloaded each year.  Table 1 present the situation in his analysis. By using the information on table1, a graphical illustration clearly shows what the situation portrays. It is observed that the more digital music files are downloaded, the revenues tend to decrease. These representations are found on table1 and figure1 respectively.

Data Source: Music Streaming service stats 2025.

Table1.  Digital average revenue per user for music download

Figure 1. Digital average revenue per user for music download.

Legal framework

There have been several legislative interventions worldwide, with bodies created to sanction the illegal use of downloaded music. These efforts, however, have been resisted for different reasons. International co-operation for mutual enforcement of copyright for authors started in the mid-nineteenth century under the Bern convention,^[21] followed by the Paris Convention that led to national statutes for most industrial property rights. The Paris convention created a basic level of uniformity.^[22] Under the Berne Convention for instance, nation states enact copyright statutes and courts enforce legal rights of authors and publishers who are nationals of signatory countries. Copyrights under the Berne Convention expanded alongside national copyright rights laws to performers, film makers, phonogram producers whose works were not initially included in copyrights laws. The U.S was not a signatory to the Berne and Paris conventions until 1989.  On the global scale, the World Intellectual Property Organization (WIPO) that was enacted in 1967 also works to promote the harmonization of all Intellectual property (IP) law. ^[23]  These IP rights extends to copyrights in the Music industry.

The formation of the European Union and the North American Free Trade Area (NAFTA) further necessitated the harmonization of inter-country IP law to promote effective competition. It may be observed that these trade areas can apply trade sanctions and fines on offending national governments when they do not observe the laws. The international agreement that has the greatest powers to enforce IP law is the Trade-related Intellectual Properties (TRIPS). Another convention that protects author’s rights is the General Agreement on Tariffs and Trade (GATT) 1986. It includes copyrights protection of intangible goods and services alongside primary and manufactured goods. These conventions have constituted copyrights and IP laws as part of international trade^[24] that is regulated by the World Trade Organization (WTO). The organization has world-wide jurisdiction on trade sanctions and the enforcement of copyrights. The Software Protection EEC directives of 1991 also safeguard copyrights in relation to the music industry. Its roles relate to computer programmes protected by the Copyright Act of 1912. The directives also set the criteria for copyrights protection under case law on conflicting national copyright regimes.

One major setback of the EEC directives is the way that it looks at computer interphases. Ideas and algorithms are not protected hence making it difficult to legally regulate authors’ copyrights. Technical terms also used in the EEC directives are also unclear for a common user. This issue is further complicated because some national directives like the protection of software in the Netherlands is still not in line with the EEC directives.

RELEVANT LITERATURE

Copyright is not a new discipline. it originated in Great Britain in 1710 with the enactment of the statute of Anne. Before then, copyright was not a legal concept and before the enactment of this statute, privileges and monopolies were granted to printers rather than authors. Copyright law has since then evolved and is applied in intellectual creations including music. There has been many scholarly contributions to copyrights although there is still limited literature on the protection of copyright in the music industry that is related to file sharing. The contributions of some authors are examined below.

Pieter kleve, Feyo Kolff (1999)[25] wrote on MP3: The end of copyright as we know it?  Their work focused on new technologies that provide the music industry with ways to run its business more efficiently by distributing music over the Internet with same posing a threat to the music industry because music is infinitely copied amongst users. They showed how copyright protection systems will not provide a lasting solution because the protection scheme will eventually be by-passed. Their work emphasized that copyright legislation can only try to keep up by differentiating between commercial and personal non-commercial use of music. Their research sowed how exchange of music in a computer file music threatens the music industry. This article agrees with the position of these authors.  Their research also informed that copy protection systems can probably provide a solution, but not for the long term because users will eventually crack any protection and render the system useless. They concluded that new technology is unstoppable. That the Internet and other computer related developments are going to be at the heart of the information age economy and that the music industry will have to face this fact. The future will allow the music industry to dramatically reduce its distribution costs but will also force the industry to look for new ways of making money and copy protection systems should not be part of that future. They emphasized that, besides the fact that technological protection systems will need enormous investments, they cannot prevent copying in the long run. Therefore, music must be freed from copyright claims for personal, non-commercial use. The idea of this work aligns with this article but limited to MP3 and copyrights. The work does not explore the fact that file sharing is the major way in which MP3 can be uncontrollably distributed that may lead to copyrights violation.

Afsana Yusuf Supti(2020), the author writes on copyright protection in the digital age. He insisted that the growth of the internet around the world has led to complications to defend and regulate interests in copyrights.  The work explains that it is possible to pass nearly all forms of works subject to copyright law via digital networks where transfer of music records has gained publicity. His work illustrates the connection between copyright, fair use, and digital rights management. It also demonstrates the four characteristics of fair use that numerous courts have suggested. The work reflects on copyright protection in the digital age under creativity, author’s right and musical rights. The focus of the paper is mainly on digital rights management as a possible way to protect copyrights in the music industry. The author does not look at the critical factor of sharing that can lead to copyrights violations. The author shows the limitations of domestic laws in regulating copyrights and points to the fact that the U.S is an example where domestic copyright law is restricted and hardly applied out of the country. He points out that this aspect has led to a heavy reliance on the Bern convention, the Universal Copyright Convention of 1952, the Geneva Phonograms Convention, the Rome Convention and the WIPO treaty. He argues that to succeed on a claim for copyright infringement, a plaintiff must proof ownership of valid copyright, and unauthorized copying or violation of one of the other exclusive rights under copyrights. His work also dwells on fair use and concludes that controlling and licensing the content of what is shared is highly impossible due to the fact that any user can upload and download. The work shows that copyright protection in the digital age is difficult to achieve and that is why the courts of various countries have laid down the peculiar rules on the fair use rule. This work is limited to protecting copyrights with the use of the law and digital rights management and does not go further to propose other solutions despite the fact that law and technology may not guarantee the protection of file sharing related copyrights violations in the music industry.

Kanika Dawar, Ashwin Sudarshan, Dr. Chitra B. (2021). The authors’ work is on copyright protection in the digital era. They examined the international framework of copyright in the digital domain and used the Berne convention, TRIPS, WIPO and the WCT treaties of 1996 to elucidate the research. The work is based mostly on copyrights issues in the digital media. They also based their arguments on the Copyright Amendment Act of 2012 and the Indian Copyright Act of 1957. The authors explore ways to deal with the provisions for infringement, fines, management information rights, internet service provider responsibility, and the establishment of statutory licences for cover versions and broadcasting planners. Their Work further explores the preventive measures against digital copyright infringement and circumvention of laws. Notably, the work classifies the most pressing copyright problems in the digital age and classified them into three categories that include databases and multimedia works as well as computer programmes, research associated with digital replication, dissemination, and broadcast streaming and copyright management and administration issues in the digital era.  The research was based on generalities such as multimedia works that may incorporate literary, artistic, musical, or dramatic aspects, as well as a phonogram or cinematographic film.  Their work concluded that it is complicated to protect copyrights in the digital world and that it is critical to achieve equilibrium between simple violation and costly prosecution, as well as the risks associated with international litigation. Their work didn’t highlight the lapses in the use of the law and technology to protect copyrights in the music industry. They relied on the law and technology but did not incorporate a third approach in handling copyrights violation despite mentioning that the protection of copyrights in the digital era is complicated.

M. Blanke (2004) on copyright law in the digital age examines the current state of copyright law with respect to works contained on different media. The work traces the history and purpose of the law, while focusing on how digital technology has shaped its evolution. It describes how recent legislation and court cases have created a patchwork of law whose protection often varies depending upon the medium on which the work lies. The author questions whether some of the recent legislation has lost sight of the main purpose behind copyright law, the promotion of learning and public knowledge. The author shows some ways through which copyrights may be granted and how it may not apply under the concept of fair use and expressed that copyright law protects expression and not the underlying idea. He emphasizes that someone can obtain a copyright for a particular song, but not for the concept of mixing lyrics with a background melody. In his work, it is also demonstrated that the primary objective of copyright is not to reward the labor of authors, but to promote the progress of science and useful arts. This article debunks this assertion. He shows the misconception that in the past, many consumers were unwilling to accept the notion that a copyrighted work on a floppy disk was as worthy of protection as a copyrighted work in a book. This notion is adopted in this article. He further explains how publishers tried a variety of methods to protect software by often using technology to prevent copying but was difficult. He recommends that software publishing industries can protect copyrights more effectively by educating the public that copyright law protects software. He encourages the use of technology like encryption codes to prevent copyrighted works from being easily copied. The work like in this article makes reference to the 1998 DCMA that provides civil and criminal penalties for distributing any code or device intended to circumvent the encryption code. The author’s work doesn’t clearly show the limits of the law nor discuss file sharing related issues in the music industry. His work does not also explore the alternative ways to protect copyrights. He relies heavily on legislation for such protection.

Mattia Marrone (2025), wrote on understanding copyright in the digital age: protecting your creative work online. The author shows how the internet has made it easier than ever to share creativity with the world and how digital platforms provide a unique stage for a YouTuber, blogger, musician etc. the work cautions that the growth of digital content is associated with a big problem that is copyright. The work further elucidates on the rise of the digital content and why copyright matters. It as such categorizes what copyright should protect which includes music, art, Photos, videos and software. The work clarifies the fact that copyright does not result only from IP but also protects original creative works like songs, videos, trademark, etc. the work shows how digital content can easily lead to copyright violation and that is why creators suffer from illegal file sharing like music, film downloads, plagiarism and unauthorized reposting. The work also explain ways to protect copyrights like registration that is a legal act and technological protections like watermarking, digital rights management tools, keeping timestamps and records of original files and content Id to track copied content. The work also examines fair use as a gray area where someone can legally use bits of copyrighted work without asking. The work does not explore legislation to protect copyrights, nor does it look at other ways of protection. the work also falls short of demonstrating how an economic approach can be used to solve the problem of copyrights violation in file sharing related cases.

Theoretical foundations

Several theories can be used to underpin this research. They include; utilitarian theory, the natural rights theory and the Social planning theory.

The utilitarian theory

This theory was propounded by John Staurt Mill in 1816. He believed that happiness was the only thing humans do and should desire for their own sake. He believed that because happiness is the only intrinsic good, and since more happiness is preferable to less, the goal of ethical life is to maximize happiness. Jeremy Bentham and John Staurt Mill called it ‘‘the principle of utility’’ or ‘‘the greatest-happiness principle.’’ In the context of this article, when creative works are made public, they can be easily replicated and distributed at low cost for pleasure.  This makes it difficult for creators to recover their investment. Without copyright protection, there would be insufficient incentive for individuals to create and disseminate new works. Therefore, granting limited exclusive rights incentivizes creators by allowing them to profit from their work. This, in turn advances science and arts for the overall benefit and welfare of society. The challenge here is to balance the incentive to create with the public’s access to knowledge and culture. Under this theory, it can be observed that consumers share music for their pleasure, satisfaction and happiness regardless of the rules put in place.

Natural Rights Theory

This theory, stems from Lohn Locke’s ideas that individuals have a natural right to the fruits of their labour. In relation to the music industry, if an author invests his intellectual effort, time, and creativity into creating a work, that work becomes an extension of their personality and therefore, they should have a natural property right over it. It suggests that creators gain ownership by mixing their ideas with their labour. Copyright as viewed under this theory, protects the emotional and spiritual bond between the creator and their creation, thereby allowing them to control their personality as expressed in the work and  presented to the world. This therefore earn authors the right to be credited and protected for their work.  This theory is related to the labour theory of value (LTV) that argues that exchange of a good and service is determined by the total amount of socially necessary labour required to produce it. It relates to sharing music files because the law envisages the protection of copyrights to enable authors to proportionately earn what they deserve for their labour.

Social Planning Theory:

This theory underpins copyright as a mechanism for achieving broader societal goals that is  beyond economic incentives or individual rights. It shows how copyright law can be shaped to promote cultural diversity, education, and democratic participation. It suggests that copyright should be designed to cultivate a just and attractive culture, even if it means departing from strict economic efficiency or individual entitlements. Under most copyrights’ legislations, it can be observed that fair use is allowed over copyrighted works that comes from the rights to making available, reproduce and distribute. This theory relates to file sharing because if fair use is considered as an aspect under this theory, then consumers ought to share music files in an equitable manner for legitimate use that will help to advance society.

While these theories offer different justifications, they often overlap and inform various aspects of copyright law. That is why contemporary copyright systems frequently incorporate elements from multiple theories in their legal frameworks and judicial interpretations.

Legal constraints posed by file sharing to protect copyrights in the music industry under the WIPO treaty.

There are several international and national legislations that protect copyrights in the music industry. Most of the legislations have challenges in implementing them. The WIPO treaty encapsulates most of these treaties and that is why emphasis is laid on it. Mention is however made to the U.S Digital Millenium Copyrights Act (DMCA) and the Organization for Economic Cooperation and Development (OECD) treaty. The WIPO treaty of 1996 seeks to protect author’s right in the domain of copyright law as regards reproduction, distribution and making available to the public. The U.S Digital millennium copyright Act of 1998^[26] (DMCA) implements two 1996 World Intellectual Property Organization Treaties to wit; the WIPO treaty and the WIPO Performers and Phonograms Treaty (WPPT). Also, the EU directives^[27] is an implementation of the two WIPO treaties and seeks to harmonize some aspects of copyright and related rights in the information society.

By implication, these treaties protect author’s rights in file sharing although that was not their main intention. Most of the legal constraints in these treaties are based on the trans-border nature of electronic data flow in cyberspace across different legal regimes. This problem is amplified by insufficient criminal law provisions on cybercrimes. The content of telematics is broad and difficult to be monitored to by governments. This may indirectly facilitate piracy crimes adversely experienced in the music industry. The Eswatini Computer Crime Act (CCA)[28]  for example may offer solutions to this problem but has its shortcomings. The OECD treaty is worth mentioning although it has its own shortcomings. This is because decisions made under this treaty are not binding on the judiciary thus leading to different decisions in similar facts case.

The exceptions of copyrights violations under the WIPO treaty

Terms like reproduction, making available to the public and distribution captured by the WIPO may be viewed differently in file sharing. Copying is the act of making a replica of something that closely resembles the original. Home copying is legally allowed under the WIPO treaty for personal entertainment. This is an exception under the exclusive right of reproduction. This tendency may however go out of control. The challenge being how to control the situation such that musicians will still earn what they are due. Technological and legal barriers have proven to be insufficient to handle this situation. In other to hopefully think of sanctioning this tendency of uncontrolled home copying in file sharing, it is imperative to reshape the way technology works and not the reverse.^[29] Although most of the treaties were enacted without noticing that electronic data is tangible, the WIPO, DMCA and the EU Directives still seek to protect authors right especially under the right to distribute.

On the other hand, making available to the public under the WIPO treaty is mid-way and at times confused with distribution and reproduction. Making available partially embodies both aspects for example in other to reproduce or to copy, data must be made available. Making available deals particularly with public broadcast or streaming over television, radio and other public media.  Making available by streaming may lead to unfair use because technology may allow available music to be copied and stored permanently for future use. Provision was not made in the 1996 WIPO treaty to deal with this situation introduced by technology. Most of what is captured in the WIPO treaty is mainly on the internet and view on demand.[30] The WIPO treaty considers this as public display. Even under view on demand, the treaty didn’t take cognizance of the fact that after watching a programme, it could be recorded and kept under different formats for subsequent use.[31] There may be an exception to copyrights violation in the music industry if the first user or the internet service provider (ISP) for instance pays for the first copy and ensures fair use.[32]

A synthesis of these analysis show that the WIPO treaty discourages file sharing in the interpretation of its language. The EU Directives and the DMCA which are for the implementation of the WIPO treaty are not also in line with file sharing because the WIPO itself does not talk about file sharing. Nowadays, file sharing is allowed with exceptions under  copyright law while the above treaties didn’t intend for it to be so.[33]

Legal limitations of copyrights protection in file sharing

Law enforcement in electronic communications is different as compared to enforcement in the conventional world. The source of law and its enforcement apparatus in cyberspace is crucial. This is because the internet allows the decentralization and democratization of the rule making process, it is evident that different decisions will be met in different places and at different times. Niva Elkin-Koren says ‘‘technology is of course human made^[34] but the main point to be emphasized is that, while direct creation of law by legislatures and courts is deliberate, transparent, and international endeavor, the creation of law by humans through technology is not transparent.’’ This shows the limitations of laws in automation processes and how certain rules may be deliberately made to disfavour regimes.

Different networks have their way of handling communications for example the concept of privacy is viewed differently across different networks. Some networks may allow cookies on their websites while others do not. This means that regulating copyrights by the law in file sharing across different platforms is a strenuous task since electronic communication also creates regulation by technology. Technology regulates behavior through its infrastructures. For example, the computer design, the computer programmes, the communication design. But since the network that constitutes electronic data interchange (EDI), is not neutral it in turns shape the behavior of users in different manners that may make aspects like home copying to go out of hand.^[35]

Although legislation may be limited to some extent in protecting author’s right in the music industry under file sharing, the courts have relentlessly succeeded in some cases to retore these rights. The U.S Court of Appeals for the Ninth Circuit in the case of A&M Records, Inc. v. Napster, Inc.[36] held that transfer of digital files through Napster’s service was not fair use.  The court deemed the purpose of the use non-transformative and noted that courts are reluctant to find fair use where the original work is merely retransmitted through a new medium. This was a landmark case in file sharing in the music industry. In the instant case, the music industry, including major record labels like A&M, sued Napster, a pioneering peer-to-peer file-sharing service, for copyright infringement. Napster was found liable in facilitating widespread unauthorized sharing of copyrighted music thus leading to its eventual shutdown. The defendant also paid significant damages to the plaintiffs in the music industry. The case set a major precedent for online platforms liability to copyright infringement.

Other cases though not limited in the music industry that have succeeded in courts for copyrights violation are; Queen and David Bowie v. Vanilla Ice[37] that highlighted the importance of clearing samples in hip-hop music, Marvin Gaye estate v. Robin Thicke and Pharrell Williams[38]  where The court awarded Gaye’s estate significant damages and a portion of future royalties,  and George Harrison v. The Chiffons[39]where the defendant was ordered to pay a substantial sum. This case demonstrated that even unintentional copying can lead to a copyright infringement.

Technological limitations of copyright protection in file sharing.

Technology is a term that embodies file sharing especially MP3 file sharing. It deals with the most complicated aspects to handle vis-à-vis the law, especially copyrights. Technological protection in the enforcement of copyright law works by using scientific methods that allows the product of one’s mind to be protected with domain names, passwords, encryption techniques and other sort of codes that might enable a party to gain access to others’ work if he has the access code. This technological process is mostly done by encryption that works through a private and public key. In this process, the code of a coded massage^[40] is sent to a designated beneficiary through another communication. Despite this technique, high-tech hackers may still crack codes and download files for different uses thus rendering technology ineffective to manage copyrights. The use of technical measures is in the interest of the content owners and consumers. If information flow is totally restricted development in the music industry may also dwindle.[41]  If high-tech hackers can break codes or passwords encryption many are not a complete measure to effectively safeguard copyrights in the music industry. Reverse engineering may also lead to a breach of copyrights. Reverse engineering refers to a process where studies are carried out to determine how a technological process is achieved and the same formular is used to circumvent the technology.[42] It is not a problem in itself; it is what holders of such knowledge wish to do with it that may lead to copyright violation. This is apparent because Ideas and algorithms are not protected.[43]

Copyrights may also be difficult to enforce with the use of technology in the music industry because some countries like China have adopted the use of an open software called Linux. An open software as opposed to a closed system like Microsoft allow users to obtain the source code of a product. They can use it to develop and access a software. Under such regimes, source codes are made public thereby allowing file swappers to deal with information the way they want.

Conversely, technologies such as cryptographic identification or reputation systems, can be valuable tools to help manage a file network and help to protect copyrights. Examples of such are Giovanni which is a blue spike digital water making technology.^[44] It can be used for identification, authentication and auditing of digital audio works. There is also the content scrambling system (CSS) which is a standard for content protection system architecture. CSS creates metadata corresponding to a region’s code and can be embedded into compact discs and compact disc players such that only approved readers can access the code.

Possible ways to prevent copyright violations related to file sharing in the music industry.               

The above analysis show that it is difficult to rely only on the law and technology to prevent copyrights violations related to file sharing in the music industry. Copyrights violation in file sharing is omplicated to handle due to technological, political, legal and economic factors. Legal checks are more often dismantled by technology. Because of this, laws may be applied with reasonable discretion in file sharing related copyrights violations. There are other suggested ways that could be used to prevent such violations like by using an economic approach and imposing a non-commercial use levy.

An economic approach

An economic approach may be used to enforce copyrights in the music industry and reduce the effects of file sharing. This approach implies that parties have to negotiate by agreeing to some compromises. This can be done by a well-controlled digital rights management system where consumers are taxed according to the amount of files that they share and authors are in turn paid according to their output and the percentage of what is being used. The forces of demand and supply could be used to achieve an equilibrium. Paying according to demand can be a useful formular to achieve this equilibrium.

An economic strategy will also imply imposing duties on first online broadcast of a piece of music. This duty can be subsidized by the broadcasting authorities and the rest left for the public to do what they want to do with the music. Authors can in turn be compensated with an amount commensurate the total time of broadcast.[45] Economically, fair use can also be encouraged by taxes. In1976 the concept of “fair use” was added to the existing copyright clause of the US Constitution. The meaning of fair use is determined by the courts under reasonable circumstances of a case. For instance, a normal audio music file can be converted to MP3 format and stored if it was legally purchased. Music files can also be stored in a computer or MP3 player for personal use so too a CD can be owned after mixing different songs for personal use. As a follow up to paying for a first copy, internet service providers can set up their music websites such that access can be gained only upon the payment of a fee. This could be by online payments via credit cards, debit cards or other forms of payment.

Governments may decide to pay artists from the general tax income of the state through subsidies and allow free access.[46] The debate on this has been for some time. There have been proposals to replace intellectual property with a system of government reward. This can take a form similar to non-commercial use levy (NUL) except those authors will receive payments from the general tax revenues. If the above strategy is used, free copying, distribution, and modifications of works of arts can be carried out without agitations of copyrights violations in the music industry. According to Niel Winstock Netanel, this system will have an advantage over a NUL because it would allow for different types of file sharing devices to have different taxable levies. Secondly, it will avoid imposing a potentially innovation inhibiting tax on new technologies for delivering and improving file sharing communications and private copying. Thirdly, a government reward regime could be funded by progressive income tax rather than a regressive sales tax on goods and services. Some draw backs may be that income tax will not be sufficient to compensate authors and the government may be over empowered to determine how the works of artists will be distributed and copied which may lead to corruption. The advantages of implementing an economic approach in file sharing is its low cost unlike legal procedures that require lengthy deliberations to implement. There will also be a fixed amount paid to musicians if the government decides to subsidize thereby reducing time and avoiding unnecessary measurability procedures.

Despite these advantages, some other problems may arise. There could be problems related to measurability. Measuring the rate at which a music file has been downloaded and shared in a broadband network communication is possible but high-tech individuals constantly create other technological means to hinder digital tracking and metering. Secondly considering the cross-border nature of information, the matter becomes even more complicated.[47] File sharing providers have also deployed protocols that select ports flexibly and masquerades traffic.[48] These systems enable their users to share files directly among themselves without the need of any central server. They form one of the most well-known categories of file sharing systems. At its peak, Napster boasted a registered user base of 70 million and 1.57 million simultaneous users.^[49] These systems blur the distinction between server, client, and router because individual computers fill these roles by communicating and sharing resources without dedicated servers. They challenge the ability to enforce copyrights from the types of file sharing applications used such as groupware and content distribution. But however, there is some information about transfer rates sent back to the tracker for statistics gathering

Effective price control may also be problematic under the economic approach. Distances covered by file sharing and the economic rules governing different countries with different economic and finance laws may have a different manner in accessing taxpayers and patents. Attempts to unify some of the aspects of copyright work in the information society can be found in the EU Directives of 2001. Price control can also be difficult and costly because price control officers will be recruited and paid.

Imposing a non-commercial use levy (NUL)

A non-commercial use levy means that for every non-commercial use purchase of hardware or software whose value is enhanced by file sharing, there should be an additional amount fixed. This amount may be determined by a copyright’s office subject to negotiations or by a court ruling. This levy may work by setting aside a portion to remunerate musical works downloaded or received via other forms of file sharing as measured from broadband transmissions. Each artist will be paid an amount proportionate to the total time that society uses their work. According to Neil Weinstock Netanel, he terms it ‘‘adjusted net revenue’’ which he estimates that an average levy of some four percent of the retail price of file sharing goods and services will provide ample reimbursement.

The NUL may take several forms like compulsory licenses and private copying levies. Compulsory licenses for example in the U.S enable various entities to distribute copyright protected material without copyright holders’ permission so long as the distributor pays the statutory fees. Hence this levy will give the right to produce and distribute copyrighted material. Private levies have been allowed in many countries like Canada and most of Europe. This type of system allows individuals to freely make private copies in return for which levies are imposed on private copying equipment and media.^[50] These private levies are paid in a central office and then divided to right holders as negotiated. For example, Germany’s levy provisions are among the most comprehensive^[51] where home copying is non-infringing but imposes a levy on the sale of audio and video recording equipment as well as blank cassettes, photocopiers, scanners and CD burners. A private copying levy is found in the US constitution but still contested in case law. For instance, in the 1984 U.S supreme court’s decision in Sony corp. of America v. Universal City studios.^[52]  In this case, the U.S supreme court ruled that home video recording of television programmes is non-infringing fair use. In Sony’s appeal, congress considered but rejected legislation that would have imposed a levy on the sales of video cassette recorders.

The Audio Home Recording Act^[53] (AHARA) imposes a levy on consumer devices primarily designed to make digital recordings of music for private use and blank media on which such recordings are stored. Secondly, the laws of the EU directives of May 22, 2001 on the harmonization of certain aspects of copyright and related rights in the information society ^[54] allows the EU to endorse the extension of the private copying levies in the digital sphere. The directives authorize EU member states to allow private, non-commercial copying in any medium so long as right holders receive fair compensation.

There are several advantages associated to a non-commercial use levy. It creates copyright immunity from non-commercial copying and distribution of any expressive content that the copyright owner has previously released to the public. The system is less expensive to implement because it is based on a readily calculable formula to approximate a periodic fair return. It is also less expensive to maintain as compared to copyright enforcement procedures which are more effective for the hard copy world.

Although the NUL regime has several advantages, a major problem can be faced when imposed levies are not sufficient to compensate copyright holders without imposing an unacceptable cost on consumers. The average NUL percentage is the quotient of total displaced revenues divided by the total retail sales of file sharing related goods and services. This will be the amount of compensation that copyright holders are due.^[55] If the NUL for instance is not applied exclusively to musical works, it may generally lead to less compensation since other categories of copyrights holders will be involved. It may also result to arbitrary payments where, ‘low-volume users’ and ‘high-volume users’ of copyrighted music can earn the same. Authors of music may be unfairly exploited because the system does not take into consideration the percentage of demand and the use of an author’s work.

FINDINGS

The major finding of this article reveals that there is a constant drop of revenue in the music industry due to digital music download that is ultimately shared. It has been revealed that it is better to use an economic approach to resolve copyrights file sharing related violations in the music industry. That authors of music will benefit from a non-commercial use levy because it does not stop them from engaging in other activities like concerts to raise revenues. The findings also show that the economic approach and non-commercial use regimes have their own shortcomings like issues of measurability and unpredictability.

CONCLUSION

This article has examined the ways that copyrights can be protected and the difficulties that can be encountered in the music industry alongside the process of file sharing. It lays emphasis on using alternative ways to protect copyrights in the music industry in the file sharing process. The conclusion from the above analysis is that it is difficult to rely solely on the law to protect copyrights related violations in the music industry under file sharing, and that it will be preferable to jointly use the law, technology and an economic approach to deal with the situation. This is because forbidding music file sharing with no conditions will hardly work since the law also attributes certain rights to consumers.

RECOMMENDATIONS

It is therefore recommended that a non-commercial use levy should be imposed on all file sharing hard and software that aids copying, reproduction and distribution. That national laws should be revised to envisage provisions of music file sharing. This may be done by harmonizing certain aspects of national laws with international conventions on the same subject. It is further recommended that a rigid tax system on recording devices should be put in place and the revenue collected should be equitably distributed to authors of music proportionate to the time spent in broadcasting their music. All this may be done in return for freedom to use musical artistic works under file sharing for different purposes without fear of copyrights violations. If these recommendations are implemented, the end of copyrights in the music industry because of file sharing may not be eminent.

FOOTNOTES

[1]The  Copyright Act of 1790.

[2] Section 4 of the Copyright Act of 1909.

[3] Section 9, WIPO (1996).

[4]Marie-Therese H. (2005).‘‘The pivotal role of digital rights management systems in the digital world.’’ Harvard University, Faculty Research Working paper.

[5]Stan J. (2004). ‘‘Pit falls in measuring the impact of file sharing,’’ SSRN Electronic Journal, 51(2).

[6]Neil W. (20023). ‘‘Impose a Noncommercial use levy to Allow Free peer-to-peer file sharing,’’ The university of Texas school of law. Law and Economics working paper No 009)

[7] Brayan A. (1999). Black’s Law Dictionary. Seventeenth Edition, Minnesota, West Group (1999) at P.337.

[8]545 U.S. 913 (2005)

[9] www.techtarget.com (Accessed on the 02/05/2025)

[10] Bandwidth is the data transmission rate, the maximum amount of information (bits/second) that can be transmitted along a channel.

[11] In 1999 , Napster boosted the rapidity  of file sharing especially in copyrighted music recordings. In may 1999 Napster was lunched and was the first global phenomenon of peer-to-peer file sharing and which saw it’s peak in February 2001 and hosted 29.4 million registered users who shared 2.79 billion files that month

[12] Jeremy R. (2002). ‘’Cutting Edge Peer-to-Peer File Sharing: BitTorrent.’’

[13] The 1976 Copyright Act provides important exceptions to the rights of the copyright holder that are specifically aimed at nonprofit educational uses of copyrighted works and libraries. One of these provision codifies the doctrine of “fair use,” under which limited copying of copyrighted works without the permission of the owner is allowed for certain teaching and research purposes provided that the 4 factor test of fair use is satisfied.

[14] 510 U.S. 569 (1994)

[15] A parody is a creative work that imitates, comments on, or mocks another work, its style, or its subject matter, usually for comedic effect. It often uses exaggeration, irony, or satire to highlight the original’s absurdities, clichés, or specific characteristics.

[16] 471 U.S. 539 (1985)

[17] This comes from the utilitarian perspective.

[18] www.musicvideohype.com (Accessed on 10/03/2024)

[19] 573 US. 431(2014

[20]www.explodingtopics.com/blog/music-streaming-stats (Accessed on 15/05/2023)

[21] The Bern convention of 1886 for copy right was formalized in the Paris Convention of 1983 (for industrial property rights)

[22] McKee129.

[23] The World Intellectual Property Organization (WIPO) was created as a UN world-wide policy forum works to promote harmonization of all IP law

[24] Anderson130.

[25] Proceedings of the Iasted International Conference of Law and technology

(1999). Honolulu, Hawai, pp. 32-37

[26]  pub. L. No. 105-304, 112 stat. 2860(Oct 28, 1998)

[27] Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society

[28] The computer crime and Cybercrime Act 2022 Vol LX.

[29] The law has to allow or disallow certain circumvention techniques

[30] View on demand is a term which means someone chose a specific time by himself to watch a programme.

[31] Example of such formats are Mp3, Mp4 etc.

[32] Examples of fair use is when music a work of arts is downloaded for home use, Academic purposes or for personal entertainment.

[33] The reproduction right attributed to copyright owners is slightly different in file sharing.  Downloading files over the internet is not illegal because it is an exception to reproduction rights. If someone download files for personal use, there is no problem. Keeping these files and making copies of them in a large scale for commercial purposes is illegal. The scalability of reproduction here matters.

[34] Niva Elkin-K., ‘‘Law, Economics and cyber space’’, International Review of Law and Economics (1999)

[35] Lawrence L., Code and other Laws of cyberspace. Edward Elgar Publishing (1999, p.6.

[36] 239 F.3d 1004 (9th Cir. 2001)

[37] This case was settled out of court and cannot be cited.

[38] No. 15-56880 (9^th Cir. 2018)

[39] 420FSupp.177(S.D.N.Y. 1976)

[40] Lorna B. (1999). Encryption security; Encryption in the real world, London, Sweet and Maxwell.

[41] See the US Digital Millennium Copyright Act (DMCA) and the European Union’s copyright directives 2001/29 on copyright and related rights in the information society.

[42] Reverse engineering simply goes into a programme’s intricacies and study how it is made. It is legally allowed for purposes of competition law.

[43] See the EU directives

[44] The John F.Kennedy school of government  Harvard university faculty research paper provides  description of systems and techniques on how a  DRM systems works.

[45] There may arguable be less problems if at the first instant of making a piece of music available to the public, such duties are paid.

[46] This free access may be however jeopardized in a situation that can be considered as tragedy of the commons.

[47] For example, the constant introduction of circumventing technologies to avoid online traffic detection.

[48] For example, by using http traffic port 80.

[49] www.cyberatlas.internet.com (Accesed on 12/05/2024)

[50]Brent H., et al. (2003) The future of levies in a digital world. Ivir final report.

[51] Rienhold Kreil., Collection and distribution of the statutory remuneration for private copying with respect to recorders and blank cassettes in Germany.

[52] 464 U.S. 417 (1984)

[53]  17 U.S.C. ss 1003- 1010 (1992)

[54] council directives 2001/29/EC

[55] Winstock N. (2003). ‘‘Harvard Journal of Law & Technology’’ Volume 17, Number 1 (2003)