Photographer : Eric Petersen
Our generation is undoubtedly the iPod and MP3 generation. However, the majority of our iPods would contain music we copied from our CD collections—which is currently illegal in Australia and an infringement of copyright.
What is copyright?
Copyright law protects works—for example, books, music, and films are all protected by copyright. The reason for this? A good incentive for people to create works is giving them rights over how others use their creations and the chance to be paid for it. One of these rights is the right to control who copies a work.
So when someone creates a song, that song will be protected by copyright. The lyrics are protected as what Australia’s Copyright Act calls a “literary work.” The musical score is protected as a “musical work” and the actual song that you hear is protected as a “sound recording”.
When you copy a song, if you don’t have permission from the copyright owner or your use isn’t covered by one of the exceptions in the Copyright Act then you are actually infringing copyright.
When you copy songs that you have on a CD you probably won’t have sought the permission of the copyright owner. So copying songs to your computer or iPod is currently illegal in Australia.
Doesn’t everyone copy CDs?
Obviously, everybody copies music. Some of us know it is illegal, while others may not. You might think that if I bought the CD, why can’t I copy it?
The government agreed that you should be able to “format-shift” or copy music that you have purchased legitimately onto another device in another format and began thinking about how to change in the Copyright Act to permit this.
What’s the government doing?
When it released the Copyright Amendment Bill aimed at reforming copyright law in Australia, it included a section to make this common practice legal.
In theory, that sounds great. At the moment, however, the way this exception is drafted, it wouldn’t actually permit copying music to an iPod. The government knows this and says it is trying to change that.
There are also other provisions in the Bill that will affect Australia’s youth, copyright and music:
- under an agreement we signed with the United States, Australia must introduce laws giving copyright owners the right to legally enforce any “digital locks” that they put on copyright material, called “Technological Protection Measures” (TPMs)
- it expands a number of criminal provisions, making it easier for police to catch what the government calls “copyright pirates”, or people who commercially gain from copyright infringement. Police can now give “on-the-spot” fines
- these criminal sections also introduce what are called “strict liability” offences. This means that even if you didn’t know what you were doing was breaking the law, you could still be fined and/or taken to court.
The government has said that these changes are aimed at making sure our copyright laws are balanced, so that copyright owners get protection while consumers are able to use copyright materials.
What are the critics saying?
Many individuals and groups have been critical of this Bill.
First, critics are worried that the criminal provisions leave many ordinary people—including teenagers—open to charges for “copyright crimes.” While the Government has said that these provisions aren’t meant to catch ordinary people, the proposed law is broad enough to have this effect, and a zealous police office could legally issue a fine on the spot or start prosecution.
For example, one section makes it an offence to “possess a device for making infringing copies.” The way this provision is drafted means that many iPod owners would be caught, given the way the ‘format-shifting’ exception is currently written.
Also, if an individual used a CD burner to create a backup of music, possession of the CD burner would also be a criminal offence. In both cases, there is a maximum $6600 fine if prosecuted. Given the seriousness of the penalties, many critics want this changed so individual consumers won’t be caught unless they have some sort of commercial aims.
Second, under the new TPM provisions, it’s illegal to break a TPM that stops you copying a song. So even if you buy a CD and want to copy it to your MP3 player, if the CD is protected by a TPM you can’t legally copy it.
What happens now?
The Bill is currently before Parliament, with the aim that it is passed by the end of the year. The government has said it will make some changes based on findings of a Senate inquiry. However, many Australians, including the Internet Industry Association, the consumer organisation CHOICE and other academic and industry organisations, are trying to stop this, or at least delay the passing of the Bill so there is more time to consider these significant changes.
How do I know this?
Fitzgerald, B, “Copyright Vision: copyright jails” Online Opinion, 26 October 2006
http://www.onlineopinion.com.au/view.asp?article=5068 at 23 November
Internet Industry Association, Risk analysis for teenagers
http://www.iia.net.au/index.php?option=com_content&task=view&id=519&Itemid=32 at 23 November 2006
Moses, A 2006, “The $65,000 Question: do you own an iPod?” Sydney Morning Herald, 20 November,
http://www.smh.com.au/news/technology/download-clampdown-65000-fines/2006/11/20/1163871308087.html at 23 November 2006
Murray L 2006, “Soon recordings will be a crime” Sydney Morning Herald, 14 November,
http://www.smh.com.au/news/technology/soon-recordings-will-be-a-crime/2006/11/13/1163266483975.html at 23 November 2006
ParlInfo Web, Copyright Amendment Bill 2006,
http://parlinfoweb.aph.gov.au/piweb/browse.aspx?path=Legislation%20%3E%20Current%20Bills%20by%20Title%20%3E%20Copyright%20Amendment%20Bill%202006 at 23 November 2006
Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Provisions of the Copyright Amendment Bill,
http://www.aph.gov.au/Senate/committee/legcon_ctte/copyright06/ at 23 November 2006
The House of Commons, The Unlocking IP Research Staff Blog,
http://www.cyberlawcentre.org/unlocking-ip/blog/
Weatherall’s Law,
http://weatherall.blogspot.com/
Catherine Bond is a PhD student specialising in copyright law at the University of New South Wales. This opinion does not constitute legal advice and you should consult a lawyer to find out your rights and obligations under copyright law. The opinions expressed are those of the author and do not represent those of the University of New South Wales.
