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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.