Theft By iPod? – Not for too much longer….(maybe)

One of the most little-known and heavily criticised provisions of copyright law may now finally be reformed, as Vince Cable is expected to announce his support for the recommendations in the recent Hargreaves Review of Intellectual Property which called for (amongst other changes) the legalisation of “format shifting”, which would allow private copying of legitimately purchased copyright material, including CDs, MP3s and videos by downloading them onto an MP3 player or other device. Currently, this is an infringement, which Cable is due to describe as “astonishing”.

Copyright is vital to the entertainment industry; it is the main way in which content producers make money. It protects music or video as soon as it is recorded; the copyright in a song or entire album belongs to either the Band or their label, giving them the right to control how and when their music is copied and made available, and allowing them to charge fees for doing so.

The law has not been able to keep up with technology. In the 80s, many LPs carried a warning that “Home Taping Is Killing Music”. We are in an even worse situation now; the Music Industry is terrified of the impact that illegal downloading is having upon CD sales. Copying or sharing a song without permission is copyright infringement, so theoretically anyone who copies a song or album onto their iPod could not only be sued by an artist or label, but also be prosecuted for a criminal offence.

The law never saw the iPod coming or predicted its success. The public at large thinks that transferring your CD collection onto an MP3 player is perfectly legal, but by transferring a CD onto your PC or iPod you are actually copying it, which is illegal even if only you listen to it. Downloading from iTunes is legal, as you’re paying for the copy of the song or album which you download, but when you pay for a CD you’re only permitted to listen to it in your own home. Changing the law will do a lot to clarify the situation.

Neither record companies or the Government will ever want to take action against an entire generation who is growing up with an iPod rather than a CD player, and no-one has ever actually been prosecuted for doing so. Recognising Format Shifting may well start another shift – in public opinion towards respect for copyright law.

But it may not be that easy. Of course, the proposed change is simple enough in the music industry, but the British Video Association has already come out in opposition to the relaxation of format-shifting on the grounds that it should be up to rights owners to decide how they provide a digital copy – many DVDs and Blu-Rays now come bundled with one, which means that as of today anyone copying the contents of an original disc could still be sued for infringement – that could all change along if format-shifting is liberalised.

It’s important to remember that File-sharing or commercial copying will still be an infringement; this is not a licence to upload to other users over P2P sites, merely an ability to transfer files between devices in your own home – sending it somewhere else is still not permitted. What effect this will have on the much-hated DRM (digital rights management) regime has yet to be seen.

As always, the first Court cases will tell the story here, but this is a first step (if a slightly more problematic one than at first glance given that different formats involve different layers of copyright) towards the modernisation of copyright law to keep pace with the digital world. this is a first step (if a slightly more problematic one than at first glance given that different formats involve different layers of copyright) towards the modernisation of copyright law to keep pace with the digital world.

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