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The Tricky Business of Listening to Music

  • April 09, 2015
  • By Hunters Law

Copyright law and music are uneasy bedfellows.  In fact, there are probably few areas of the law where there is such a real disjoint between what is happening in everyday life and what is actually legally allowed.  A recent change in copyright law now permits personal copying of media for private use in limited circumstances; few people would have been aware that it was illegal in the first instance.  We have all learned by now that pirate copying of content is a bad thing (and quite rightly so) but it may come as a surprise to many that, what might be regarded as “normal” music listening habits, constituted, until recently, infringing activities under copyright law.

As the law previously stood, “format shifting”, which means transferring music, for example, from a CD to your MP3 player, was illegal, regardless of the fact that you paid for and owned the CD and moved the music across to your MP3 player only for the purpose of private listening.  The same applied to moving an e-book or film from one device to another.

A narrow exception in copyright law now allows individuals to take copies of works that they have lawfully acquired on a permanent basis (i.e., that are personally owned and not borrowed) for private use on a non-commercial basis.  It is now legal to copy music, books and videos across between devices or storage media.  There are still restrictions: the exception does not apply to works that have been borrowed, rented or accessed by streaming (whether legally or not) and does not extend to computer programs.  It remains illegal to copy content in those circumstances.  Neither does the exception allow you to share copies with friends or family, even in a private, domestic setting.  While this change in the law is no doubt useful, it demonstrates the glacial speed with which the law is attempting to catch up with fundamental shifts in technology and media consumption habits since the current copyright laws came into force in 1988.

Despite the recent changes, there remain practical barriers to format shifting.  DVDs and e-books, and less commonly also CDs, are protected by Technological Protection Measures (TPMs), also known as Digital Rights Management (DRM).  These measures are intended to protect against piracy and it remains illegal to circumvent them, even if the TPMs prevent the now otherwise permissible private format shifting.  There is a process which allows users to complain to the Secretary of State for Business, Innovation and Skills, via the Intellectual Property Office, if the application of a TPM prevents them from benefitting from one of the new copyright exceptions.  Before doing so, users are required to contact the rights holder and try to agree a solution.  It is difficult to imagine that this complex complaints process will be widely or successfully engaged.  Procedures like this do not reflect the reality of how people use media in the digital age.  They lack a sense of reality and increase the risk that the public will simply flout the law.

Copyright reforms have some way to go yet but this example demonstrates that reconciling the interests of consumers and those of copyright owners remains a difficult balance to strike.

This article was originally published in Discover Germany and can be found here.

Gregor Kleinknecht

Hunters incorporating May, May & Merrimans

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