Law ties consumers to CDs

A 32-year-old law keeps South African music fans tied to a technology that is rapidly becoming obsolete.

Just as long-playing albums made way for tapes, which were then replaced by CDs, CDs are now falling by the wayside in favour of digital formats, such as MP3.

However, the Copyright Act, which dates back to 1978, makes it an offence for people to shift the format of their music from CDs to digital.

This creates a problem, as several international audio equipment manufacturers, such as Linn, have already stopped making CD players.

The result is that people could end up paying twice for their music collection, in the same way that LPs and videos were replaced by newer formats when CDs and DVDs hit the scene.

Lance Michalson, a partner with Michalsons Attorneys, says: “Most people will probably be amazed, and even angry, to learn they cannot 'consume' music they legitimately bought, in any fashion they see fit, but it is the law - even if it is ultimately an outdated and somewhat silly law.”

Michalson explains that people who rip their entire CD collection on to a computer to listen to tracks on their iPod have clearly broken the law. They could face a fine of up to R10 000 or five years in jail for each item ripped from CD to a digital format, he notes.

However, he says, the “courts are clogged up with far more serious criminal matters and it is questionable whether the legal system would be able to cope with every South African who has ever made an illegal copy of their music being charged”.

Fortunately, says Michalson, copyright does not exist forever. The copyright for literary and musical works expires 50 years after the author dies. The copyright for sound recordings expires 50 years after the recording was made, so people with albums from the 50s and 60s can copy away.

In addition, he says, a new Copyright Act is rumoured to be in the writing. “Hopefully, the new law will take into account the digital era and the technologies that exist, making copyright law more robust and suitable for our age.”

The Act at the centre of the issue is the Copyright Act of 1978 - well before the digital age was even a consideration, and before CDs had even made it onto centre stage.

Michalson explains that, in terms of the legislation, unless consumers have permission from the recording company, they cannot make copies of a song, regardless of the form the copying takes, or whether it is for private use or not.

He says when buying a CD, tape or digital file, what is actually being purchased is the storage medium, and not the actual music. At the same time, a licence to use that medium is also being bought, and this licence will determine what can be done with the music.

Although copying a CD for personal use does not infringe on the artist's copyright, as long as the copying is considered “fair” in terms of the law, recording companies have stricter rights, says Michalson.

He explains that rights held by recording companies are not limited. “While copying music may not infringe the copyright of the artists, it will always infringe the copyright of the recording studio.”

However, says Michalson, there are some leniencies in the system because music is bought with a licence that dictates what can be done with the content. The recording studio can choose to allow people to make a limited number of copies of music in a digital format by licensing it through digital rights management.

In addition, music released under a Creative Commons licence could allow users to make multiple copies, or even distribute music to others without infringing the copyright depending on what the licence allows, says Michalson.

David du Plessis, COO of the Recording Industry of SA (RiSA), says converting CDs into MP3s or any other format for personal use is in conflict with the provisions of the Copyright Act.

However, he is not aware of any record company that has elected to institute legal proceedings against a purchaser of a legitimate CD, for “shifting” tracks on these CDs to another format for their own personal use.

“The current excitement about 'format shifting' is a twirl in a very small academic teacup,” says Du Plessis. “The very same legislation is used to protect the livelihood of performers, record companies and composers when cracking down on music pirates and, for example, the unauthorised uploading of tracks onto Web sites.”

Du Plessis says record companies can pursue their rights against people that are negatively affecting the sale of music sound recordings. They can also elect not to pursue individuals that purchase a legal sound recording and then “format shift” the music tracks for their own personal use.

He says it is not a priority for music companies to chase after people who legally purchased CDs, LPs and tapes, and then “format shift” it for own personal use.

RiSA, which represents the recording companies, works with law enforcement authorities to protect the recording industry's rights. It acts on behalf of the recording industry to clamp down on people who copy copyrighted sound recordings for commercial gain.

In addition, if “format shifting” extends to any third parties' personal use, this will also be pursued by RiSA's Anti-Piracy Unit. He adds that RiSA's view does not extend to sharing the copied music with any third parties, including family members, friends, acquaintances or complete strangers.

Arthur Goldstuck, MD of World Wide Worx, says the “prohibition on copying your own purchased music for your own use is a consequence of, and a classic example of, the music industry's intensive focus on its own rights at the expense of those of its customers”.

Goldstuck says the fact that people cannot legally copy their own music is the reason the music-consuming public has no sympathy for the industry in its fight against illegal downloading.

He adds that this is contributing to the collapse of the core of the music industry, namely physical distribution through CDs.

Research released by the International Federation of the Phonographic Industry at the end of April indicates global music sales fell 7% last year. Its chairman and CEO John Kennedy said piracy was hampering growth in the market.

“The next generation of phones will all, by default, be music players too. When those phones penetrate the mass market, traditional physical music sales are dead as an industry sector,” says Goldstuck.