IPods and the Internet: Will the Law Ever Catch Up?

Introduction

Ever wonder what could happen if you got caught downloading illegal songs? Whether you may copy a CD onto your computer? Or whether you may give your friends a copy of your favourite CD? Well, the laws are changing and those changes could affect you.
For years people have been transferring CDs to their computers and from their computers to MP3 players, but it’s always been illegal. Just recently the law was changed in an attempt to keep up with changing technology. Although these changes were a step in the right direction, the law still doesn’t deal with many ways people may legitimately need to use sound files and written music every day. The changes include the introduction of new criminal offences, enhanced rights for copyright owners and new exceptions allowing people, institutions and organisations to use music and recordings more flexibly. Almost everyone is affected by these new changes.

New Protection For Copyright Owners

New Criminal Offences

You can actually go to jail if you copy CDs and sound files under certain circumstances. Not only that, you can also be fined up to $60,500. Worse still, if your company does the same thing it can get fined up to $302,500. These new punishments not only cover making illegal copies of sound recordings, but also cover selling, distributing, importing, recording, exhibiting, publishing and, in some cases, even possessing illegal sound recordings. But don’t be too worried, many of these offences only relate to commercial activity. Even so, these new punishments have created a very real reason not to deal with illegal sound files.

Technological Protection Measures (TPM)

Sometimes it doesn’t work when you try to copy a CD. It could be because the CD has a TPM. A TPM is similar to a security system that controls access to digital material such as sound files. The data on the CD might be scrambled and must be decoded before it can be copied; this scrambling technology is a good example of a TPM. It’s illegal to sidestep a TPM and you can be fined for doing it. Of course, there are many types of TPMs and with the change of the law came a wider range of technologies and devices that could be considered TPMs. This has given copyright owners more protection over their copyright work in digital format.

Exceptions To Copyright infringement

Recording the Radio and Tv

It used to be common to record the radio in order to listen to it at a more convenient time and everyone still records the TV for the same reasons. This is now legal provided the recording is made for “private and domestic use” and is not recorded from the Internet. It’s also clear that you can lend the recordings to your family or household for their “private and domestic use”. There are still problems regarding the meaning of “private and domestic use” and the way in which you can use the recording, but it’s pretty safe to say that you can use those recordings at least once for private use in your home or can lend them to your family or household for the same use (It appears though, that you cannot create a home library by keeping the recordings indefinitely).

Copying Sound Recordings

How many people do you know have copied their legitimately purchased music CD onto their computer? How many people do you know have copied that music onto an iPod? Though record companies never took issue with it, every time people did this they were breaking the law – amazing, isn’t it? Well, the law finally caught up a notch. If you own a sound recording you may now make copies of it for “private and domestic use”. For example, you are allowed to copy your music CD onto your computer and copy that music onto your iPod or MP3 player, so long as the originals are legitimate and the copies are made for “private and domestic use”. Once again, as with recordings of the radio and TV, the meaning of “private and domestic use” is unclear.

Use For the Purpose of Parody or Satire

This is a big one. Basically, if all you intend to do is satirise or parody a piece of music, its words, a recording of it or even its cover art, you don’t need the copyright owner’s consent. It’s hard to say how far you will be able to push the boundary of this defence, but taking the broad definitions of “parody” and “satire” it appears that the exception will be far reaching. However, there is at least one limiting factor; it seems that the parody or satire must be “fair”. Again, this word does not provide a lot of guidance, but the amount of copyright material used, the context and the commercial nature of the material being used will probably be taken into account.

Copying For Research or Study

Many people photocopy books or music when they want to give a copy to, say, a member of their band or ensemble, but generally it is illegal. One occasion in which you may make photocopies is if you are making them for the purpose of research or study. Even if you’re making copies for one of those purposes there may still be limits on the amount that you may photocopy. Generally speaking, you will not be breaking the law if you only reproduce: 1) 10% of the number of pages included in the item you are copying (provided there are more than 10 pages); or 2) 1 chapter of an item that is divided into chapters.

Provisions Affecting institutions and organisations

Caching For Educational Purposes

Most universities, TAFEs and schools use caching, but only recently has it been made clear that this is allowed. Simply put, caching is used by computer systems to help speed access to, say, the Internet. Very basically, what happens is this: 1) you visit a website containing certain data; 2) the computer system automatically copies some of that data; 3) when you go to that website again the computer “remembers” so, to speed things up, it uses some of the copied data instead of downloading it again. Because this process involves the copying of data, it is questionable as to whether it’s legal. The changes in the law ensure that automatic caching (as described above) can be used by educational institutions, but unfortunately does not help anyone else who uses a computer system.

Further Changes Affecting institutions and organisations

Many further changes to the law regarding musical works and sound recordings have little effect on the majority of copyright owners. Suffice to say that:

1. Government libraries and archives can now make up to 3 copies of musical works and sound recordings kept in their collections if those works and recordings are of historical or cultural significance to Australia;
2. Musical work can be performed and a sound recording can be played in a classroom, for educational purposes, even if authority has not been obtained from the copyright owner;
3. Copyright Tribunal of Australia (CT) has the power to determine the amount payable for certain uses of copyright material administered by copyright collecting societies (such as APRA and AMCOS) and how such amounts are to be distributed; and
4. New guidelines for alternative dispute resolution processes have been added. These help determine the steps that may be taken when certain copyright related disputes arise and applications are made to the CT to resolve such disputes.

Conclusion

The changes to copyright law significantly affect users and owners of music and recordings. The changes are widespread and, in some cases, their meaning is uncertain and still not equipped to cover the ever-expanding and changing music industry. As a result, it is difficult to predict their precise effect. However, these changes are a step in the right direction and at least attempt to reflect the developing markets, technologies and uses of the Internet, sound files and musical works in digital format. One thing that has been made clear from the recent changes to the law is the fact that copyright laws of Australia, and the world, are having a hard time keeping up with the continually advancing technology being introduced to the music industry day-by-day. Then again, this is a problem that copyright has always suffered and probably always will.

Notes

1. Another important copyright-related paper is International Free Trade and the Issues for Music and Music Copyright by Richard Letts.

Author

Christopher Chow. Last updated 7 March 2007.