In this mornings My Broadband piece “Warning: Converting a CD to MP3 is illegal in South Africa“. It quotes myself and my friend and colleague Tobias Schonwetteron why format shifting by the owner of a CD or other sound recording amounts to copyright infringement.
Format shifting, for example from a CD which you own, to a MP3 format on your mobile phone involves making a copy. The 1978 Copyright Act gives a copyright holder a monopoly on making copies, no-one else can make a copy without permission, unless there is an exception.
Is there an exception that allows format shifting? Section 12(1)(a) of the Copyright Act allows copying for “personal or private use” of a literary or musical work. A CD contains literary works i.e. the lyrics of a song, and musical works. The musical work is not the same as the recording of the specific performance, the musical work is the arrangment of the notes that played. A CD also contains a sound recording. When Whitney Houston made a sound recording of “I will always love you” she, or more likely the record company, owned the copyright in the sound recording but they had to pay Dolly Parton and her record compay for the music and lyrics. Section 17 deals with exceptions for sound recordings, and although it adopts the exceptions from section 12 (1) (b) ,(c), (2), (3), (4), (5), (12) amd (13).
Its important to note that although the law doesn’t give an exception to format shift there is a way to fix this without changing the law. Record companies could simply give permission to the purchaser’s of CD’s to make an MP3 copy because that is what their consumers want. They have that legal power, they choose not to use it. Not everyone is happy with this state of affairs, consumers have started a Facebook Group; Stop RISA.
I have been asked what people can do about the 1978 Copyright Act. The African Commons Project has a petition for a consultative development focused copyright review.
Your can sign it. You can leave a response on the site that the law must be changed to include the right of consumers to format shift when they have paid for a work on one medium.
Full disclosure: I am on the board of the African Commons Project.
Edited to add: Some comments on the issue suggest confusion. Here are a few pointers to clear up confusion.
- Section 19B of the Copyright Act allows a lawful possessor of a computer program to make back up copies. So it is lawful to back up a computer program for which you’ve paid.
- South Africa has a series of narrow exceptions and not a broad limitation such as fair use. I won’t elaborate on the problems with these exceptions here, the Report of the Open Review of the South African Copyright Act does so extensively.
- Some people have raised the possibility that regulation 2 from the Copyright Regulations may make it lawful to format shift. The regulation reads
“Permitted reproduction
The reproduction of a work in terms of section 13 of the Act shall be
permitted- (a) except where otherwise provided, if not more than one copy of a
reasonable portion of the work is made, having regard to the totality
and meaning of the work; and
(b) if the cumulative effect of the reproductions does not conflict with the
normal exploitation of the work to the unreasonable prejudice of the
legal interest and residuary rights of the author.”
So what does that mean? Thats the problem, it is by no means clear what ‘reasonable portion’ means, nor ‘normal exploitation’ nor “unreasonable prejudice’. What is clear is that the radically different interpretations, those by the recording industry, those by users and consumer activists can all make claims about what this means, and there is no judicial precedent to guide
What these three points show is that: that there are big problems with unclear provisions in copyright legislation so that the Copyright Act and regulations is hopeless as a guide to ordinary South Africans.
I found it a little laughable that the RiSA points the user in the direction of musica and Pick n Play as mechanisms available to download music legally…
Musica has been dead for a long time and when I went to check Pick n Play, it is “under construction”… i.e. retired but just in case they change their mind…
Nokia is marginally better but because the music is DRM’d it’s not really an alternative to CD’s as it’s not possible to copy the music in any case or to play it on anything other than one computer and your nokia music supported cell phone.
RiSA should really be lobbying Nokia to have DRM removed from their store and also lobbying Apple to bring iTunes to SA.
Though I fear the horse bolted long ago – South Africa consumers have never had a viable mechanism to acquire digital music that even when one arrives they won’t use it.
First, your apostrophes are disgusting! All in the wrong words and places.
Second, the Copyright Act must keep apace with technological developments. For obvious reasons, many owners of vinyl 33 RPM LPs do not have a turntable or cannot find a stylus or the item is beyond repair, but they want to listen to their music. How? By getting someone like me to transfer it to digital CD. When I started doing this, I asked many recording companies including Reader’s Digest, Gallo Africa, EMI, etc., how they would feel if I made just one CD copy of the LP for the bona fide owner of the LP. They were unanimous in their agreement that only one copy would not elicit any type of legal action against me. Consequently the Copyright Act must be changed to enable people who are recording vinyl to CD to remain above the law and avoid prosecution.
Third, to expand on my second point, most customers do not want the latest CD version of their music because it’s a different orchestra, different conductor, or, like in most cases, the version of their LP is simply not obtainable on CD anywhere! Therefore a CD backup copy of their LP is the only way these people may rekindle their memories and once more listen to their favourite music. This is hardly a crime!
What is a crime is that copyright owners never made provision for owners of vinyl records to exchange their records for CD so that they could also make a format shift without having to repurchase all their precious LP’s
The music industry and film for that mater is greedy and will not go out of their way to help customers to protect their investments.
If you accidentally scratch a new CD or DVD you can bin it and go buy a new one even tough we did not choose the vulnerable hardware used to distribute music, movies, software and games.
I have deejayed since 1967. I have come through various formats like singles, LPs, tapes and CDs. Obviously I have a huge collection of music. It is not feasible to use a record player, tape deck and CD player at functions and of course they are easily damaged. I have recently converted all my music to MP3 and stored it on my hard drive. It is much easier, cleaner, smaller etc to use, but now you tell me it is illegal! I have bought and paid for the older formats, what else can I do? You know how much space is needed to store a thousand LPs that are not played! I spoke to my attorney regarding changing other folks record collections to disc for them and he told me the law was a bit outdated and rather hazy. He also advised me to keep the originals as proof of purchase. How ridiculous that now I don’t need all the records, but I can’t sell them! Time to change the law! It is exactly the same law as applies to books, movies, art etc, so why are they not crying?
People record movies and TV programs every day. Wh sell recorders? MP3 players are commonplace, even fitted to new cars, but there are no MP3 discs for sale? The music industry is bullying us into submission and it’s all about their profits, not the musicians! While we are on the subject, why is there no control over public performances of music by unregistered DJs, clubs etc, but those of us who are registered have to pay through the nose?
You made a few fine points there. I did a search on the topic and found a good number of people will consent with your blog.
I totally in agreement with Derek,there is also another side to this debate. The environmental impact, a few years ago i decommissioned a vinyl(LP plastic)industrial plant in Sasolburg area, don’t think anybody has any idea how many tonnes of mercury has split into the ground to manufacture LPs, this is working its way into our water table.
Same goes for the manufacture of cd plastic there is a carbon foot-print & latter generations is going to pay for our foolish short term out look.