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Can i upload this to my ipod?
Craig Subocz, Solicitor
Have you recently taped a TV show or uploaded
a song to an iPod? Well, relax (but be careful), because
you (probably) no longer infringe copyright.
The Commonwealth Government, recognising that
these are common activities, reformed Australia’s copyright
law on 1 January 2007 to bring it into line with consumer
behaviour. However, the ‘devil is in the detail’.
Previously
Before 1 January 2007, Australia’s copyright
law prohibited anybody who does not own copyright in a
musical work, sound recording or television broadcast from
reproducing the work, however a narrow exception may
sometimes apply. Personal copying (taping a TV show or
uploading songs to your iPod) was not exempted.
What the amendments intend to achieve
As part of a wide-ranging review of
Australia’s copyright legislation, the Commonwealth
Government introduced exceptions that allow a person to
record a television program or upload a song from a CD to an
iPod without breaching copyright. Other amendments include
amendments regarding technology protection measures,
criminal sanctions for ‘piracy’, exceptions for parody and
satire, and exceptions for cultural and educational
institutions.
The fine print
Recording broadcasts of films and sound
recordings (‘time-shifting’)
Under the
reforms, recording a broadcast of films or sound recordings
solely for private and domestic use by watching or listening
to the broadcast at a time more convenient than the
broadcast time will not infringe copyright.
The
exception does not apply when the article embodying
the film or recording is sold, let for hire, by way of trade offered or
exposed for sale or hire (advertised), distributed for the purpose of
trade or otherwise, used for causing the film or recording
to be seen or heard in public, or used for broadcasting the
film or recording.
However, simply lending the article embodying
the film or recording to another member of the lender’s
family or household for that person’s private and domestic
use does not cancel the application of the exception to
copyright infringement under the amended Copyright Act
1968 (Cth).
The Government considers that dropping the
limitation originally included in the exception that the
recording had to be carried out on ‘domestic premises’
provides greater flexibility and allows greater use by
consumers of developments in digital technologies to record
broadcasts outside their homes as well as inside for private
and domestic use.
Now, the Copyright Act 1968 (Cth)
defines ‘private and domestic use’ to be ‘private and
domestic use on or off domestic premises’, in a clear
attempt to capture uses such as listening to sound
recordings while travelling.
Copying
works, sound recordings and films in different format for
private use (‘space-shifting’)
These are the so-called ‘iPod’ amendments.
There are some interesting points:
-
The Copyright Act 1968 (Cth) specifies permitted
format changes, namely, from books to any other format,
photographs stored electronically to hard copy, sound
recordings from CDs, tapes, records, digital downloads
to any other format (but not podcasts), or films from
video into electronic format.
-
You must own the copy that is ‘space-shifted’ (‘earlier
copy’). The exception does not apply where the copy is
borrowed or (understandably) pirated.
-
The transformed copy (‘later copy’) must be made using
the ‘earlier copy’.
-
The sole purpose of the transformation is for your
‘private and domestic use of the later copy’ with a
device you own and which can be used to cause sound
recordings to be heard.
-
The space-shifted copy cannot be sold, let for hire,
offered or exposed for sale, or distributed for the
purpose of trade or otherwise.
Again, the
exception to copyright infringement does not apply if either
the earlier copy or the later copy is sold, let for hire, by
way of trade offered or exposed for sale or hire
(advertised), distributed for the purpose of trade or
otherwise, used for causing the sound recording to be heard
in public, or used for broadcast of the sound recording.
However, merely lending the earlier copy or later copy to
another member in the lender’s family or household for that
person’s ‘private and domestic use’ does not cancel the
application of the exception to copyright infringement.
The
definition of ‘private and domestic use’ applies to the
space-shifting exception.
Conclusion
The
Commonwealth Government’s amendments to the Copyright Act
1968 (Cth) in relation to “time-shifting” and
“space-shifting” for “personal and domestic use”, by and
large, bring copyright law into line with community
expectations. However, the Commonwealth Government chose
not to define “personal and domestic use” beyond the
clarification that such use is not confined to "domestic
premises", so we await with
interest further detail from the Courts on this point.
For further information,
please contact Craig on +61 3 9609 1646 or email
csubocz@rk.com.au
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