p2pnet - rss feed: Fair Use? Fair for who?
p2pnet.net News View:- The Federal Government has recently announced a review of Australia’s fair use laws. This review is more than about music, film or other content – it’s about Australia’s legal system and its ability to adapt to the use by consumers of new technology.
At the moment one of Australia’s most popular songs is Beautiful Soul by Jesse McCartney. It was #1 on the Australian singles charts for several weeks. The track is currently unavailable as a paid digital download from the 3 authorised suppliers of digital downloads in Australia – Bigpond Music, Ninemsn Music and Destra.
Because Australian consumers can’t purchase paid downloads from international sites without a US issued credit card, this means that in most cases, consumers can’t legally download the track in Australia. Jesse isn’t alone. Recent studies demonstrate that many other current hit songs are also unavailable as “legit” downloads. And, as for the classics, try legally downloading anything by the Beatles!
So, if a consumer loves the Jesse McCartney track and wants to play it on his or her digital player, there are only two choices available to consumers: either they download the track illegally, or they buy the CD and rip it on their computer.
After 14 months of proceedings and testimony in the recent Kazaa case, it’s evident that Australian consumers shouldn’t be using BitTorrent, Kazaa or any other systems to download music!
However, under current Australian fair use laws, Australian consumers can’t legally purchase the CD, rip it, and then convert it to an mp3 or WMA file that can be played on a digital player. Potentially, any Australian consumer with a Jesse McCartney song on his or her digital music player has broken the law and is potentially subject to recording industry enforcement proceedings.
Australian consumers also can’t back up their music CDs either – so if they scratch the sole copy of their limited edition Nirvana CD imported from Canada, they’ll have a serious problem! Hello eBay! Nor is this just a problem for consumers who want to protect their precious CDs. It’s also a problem for consumers who want to play their music at home, at work, and in the car. In the words of one disgruntled music consumer, “how many times are the record companies going to make me buy this CD – once for the home, once for the car and once for the CD walkman?”
Australian copyright laws have turned Australians into a nation of intellectual property “pirates”. It’s unlikely that the Australian Federal Police would ever investigate individuals for offences such as illegally copying a CD. However, Australian courts allow copyright owners to obtain civil search “Anton Piller” orders. No one has suggested that the power of copyright owners to obtain Anton Piller orders should be limited. However, at the moment, we trust the ARIA (Australian Recording Industry Association) not to commence enforcement proceedings against kids who listen to Jesse McCartney mp3s, or their parents who listen to Beatles mp3s.
Should we trust the recording industry? No more than we trust any other industry driven by profit and the need to maximise shareholders returns. Remember, internationally the recording industry has sued minors, as well as schools, and Universities.
Australia’s copyright laws are outdated and don’t reflect the significant technological changes which have taken place in the past few years.
While there’s no perfect balance between the rights of consumers and content owners, a good start would be a levy on blank CDRS/DVDs and possibly on hardware. This levy could be accompanied by a liberalisation of Australia’s copyright laws which would allow legitimate backups when the source CD has been purchased, or has been downloaded from an authorised supplier. Levy proceeds could be shared by copyright holders.
Recently, the ARIA said “a blank media levy … is strongly opposed by the record industry, both here in Australia and internationally”.
The ARIA has many reasons for supporting the status quo. They complain that such a levy would result in “inadequate financial returns”, such a levy would be anti-competitive, and the process of allowing non-infringing consumers to obtain a refund would be “cumbersome”.
The ARIA is also concerned about applying a “credible” process for distributing any revenues collected from such a levy. This is a surprising criticism given the impeccable credentials of the PPCA, which is the recording industry’s own collecting society. As far as the recording industry is concerned, relevant mechanisms for distribution are already in place.
In 1989 the recording industry supported a blank tape levy. The levy was declared unconstitutional by the High Court in 1992, much to the chagrin of the recording industry who at the time was looking forward to the substantial revenue stream.
[Canada has such a levy which was, indeed, imposed at the behest of the record label cartels - Ed]
So what’s changed since 1989?
Very little.
Instead of the Sony Walkman we have the Apple iPod.
Instead of the dual deck VCR we have the DVD recorder with a built in hard disc. Instead of stereo simulcasts we have broadband.
The song remains the same while the technology changes.
In the meantime, Australia’s copyright laws continue to pre-date the moon landing.
Substantial legislative change is necessary for Australia, in order for consumers to benefit from the technological changes that the future will bring. Fair is fair. Australian consumers have already so far missed out on the introduction of iTunes, while the list of countries with iTunes reads like a United Nations membership list.
What else will Australian consumers miss out on?
Alex Malik
[Malik specialises in intellectual property rights enforcement. He’s also an ex-ARIA in-house lawyer and former senior legal officer at the Australian Communications Authority, Canberra.]
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Something you think we should know? tips[at]p2pnet.net
See:-
has such a levy - Exploding the Big Music myth, p2pnet, December 6, 2004
May 10th, 2005 at 6:35 pm
You can put all the fancy legal jargon and plead the case the way you see it but you file sharing cats just don’t get it and are dreaming the impossible dream.
I’ll make it simple for you:
Lets say that I am the copyright holder of the song or intellectual property. This could be the songwriter, publisher, record company or any combination of that holds copyright on the music.
Its my property, I own it and I decide in what form or format that I want to distribute my goods, not you or anybody else. As long as there are copyright laws which are there to protect creators and owners of intellectual property, the consumers are going to be offered music at a price and in the format of the copyright holders choice. It’s their property, not yours.
If the songs are not available for sale in Australia as digital files, I have no doubt that they will be in the near future. You’ll have to wait. If you want the songs now, you could buy the CD, rip it, give it away to your friends or illegally post it on file sharing sites like you’ve been doing for years.
Fair Use? Fair for who? Has nothing to do with Fair Use, it’s not your property, it’s the Copyright holders. I can guarantee if it was your property, you wouldn’t want people stealing it and giving it away.
Songwriter/Publisher
May 10th, 2005 at 6:55 pm
Consumer reminds me of some mindless being using up a product. A better word is customer. A consumer is just a statistic to be used at the whim of the cartels and government. A consumer is something that will accept whatever thecartel put out. A customer is someone who chooses a companys product. Remember, “A customer is always right.”
Is is much the same story with “human resource.” A resource is something to be used to accomplish a goal, and that goal is usually to hog up as much money as possible. Employee(s) or personnel implies that people have value. I know it sounds like nitpicking over the choice of words, but word choice can make even the most hideous concept seem palatable.
Which is a better headline, “MPAA And RIAA Annouce More Lawsuits against Consumers,” or, “MPAA And RIAA Announce More Lawsuits against Their Customers?” When we quit expressing the same attitude towards ourselves as the cartels do and start using terms that indicate that we are people, it may begin to register with the cartels that we are more than just cash generating cattle.
May 10th, 2005 at 8:08 pm
No one is arguing that you shouldn’t be able to control how you decide to distribute your works but on the otherhand … it would make sense to allow a broader distribution model in the law. Why would you have a problem if userX decides that instead of playing the CD she purchased in her stereo she decided she wanted to play it in her iPod at work? You’ve already collected your $$$ for your work through royalties/fees etc so why should you have a problem HOW* someone decides to listen to the music? What exactly are you losing by allowing the music to be listened to in various formats? You’ve already been paid so there is no loss to you. In the end the only ones who benefit from a restrictive distribution model are the distributers by forcing people to purchase the same things over an over in various formats or by denying a potential customer the opportunity to purchase the song rather than use p2p.
*jon would be nice to have some simple HTML like <em>, <strong> and <a href> on here
May 10th, 2005 at 8:10 pm
Go back and read the article again. You said “If you want the songs now, you could buy the CD, rip it” but that’s exactly the issue. It’s about fair use by the customer of the product the customer bought. Right now that’s the only vaguely legal way the customer can listen to the music using the typical players (like an iPod) and even that’s illegal (in Australia).
As a Songwriter/Publisher do you seriously want to say to your customers, “You can listen to my music here, but not here”. You can listen to it at home but not while you’re running. You can play it on your stereo, but not on your computer. If you scratch your disk, tough, you’ll have to buy another one.
Notice that nothing in the above argument says anything about emotive words like “piracy”, “stealing”, “counterfeit”. We’ve got to reframe this debate around “fair use”, “customer rights”, “transparency”. We can debate the effects of loaning, borrowing, sharing, reselling and the counterfeit industry. But that’s not the issue here. This one’s about what a customer should be allowed to do *for their own use*.
May 10th, 2005 at 9:26 pm
*sigh*
Copyrights are NOT RIGHTS. They are an agreement between the government (read that as the citizens of a country as that’s who should controll the country) and an copyrights holder. The idea being to create some compensation for the creator of the work (NOTE: creator of the work, not some multi-national cartel) without stepping on the rights of John Q. Public.
Again they are suppose to be designed to assist the creator in getting compensatd for their work…. they were not designed to allow “holders” (as in copyright holder) to control every possible use of the creation…. that concept has risen from the greedy cartels who belive they should be allowed to make huge profits off of the creative works of others.
If you want to control every possible use of your creation then keep it to yourself.
May 11th, 2005 at 2:04 am
I have no intention of getting into the copyright debate here, but I really have to object to the idea of charging a levy for blank media as a method of forcing people to pay for copyright material.
There are plenty of uses for CD-R and DVD-R discs other than pirating music and movies. How about backups, storing digital photos, and making bootable free-software (and yes, I mean free as in “Free Software Foundation” and Linux) installation CDs for starters. A levy on blank media would result in me paying fees to some copyright holder for violations that other people are committing, and it won’t actually make the downloaded music any more legal, just more costly.
This is not a solution.
May 11th, 2005 at 4:28 am
When you buy a CD, what rights do you actually get? The article seems to be suggesting that at least in Australia you get virtually no rights. If you want to play a track from the CD you have bought on your MP3 player, or as a digital file off your computer there is no legal way to do it … even of you’ve bought the CD or paid for the download. The levy seems to be suggested as a way of compenstaing owners for a relaxation of these rights. If the slightly owners loosen their grip on their IP, they get a little revenue thrown in their direction. It seems like a reasonable trade.
May 11th, 2005 at 4:45 pm
(”If you want the songs now, you could buy the CD, rip it” but that’s exactly the issue. It’s about fair use by the customer of the product the customer bought. Right now that’s the only vaguely legal way the customer can listen to the music using the typical players (like an iPod) and even that’s illegal (in Australia)
If the digital file isn’t avalible for sale at present and you really like the music, buy it on a CD, play it in your computer, play it on your Walkman, play it on your stereo system or any number of CD hardware players that are available and I’m sure you have at your disposal. If you want to play it on your digital file player, you’ll have to wait until it is available for sale. “It’s my intellectual property (Copyright Holder) and I will decide in what format and what license that you will get to use that property.”
(As a Songwriter/Publisher do you seriously want to say to your customers, “You can listen to my music here, but not here”. You can listen to it at home but not while you’re running. You can play it on your stereo, but not on your computer.)
“It’s my intellectual property (Copyright Holder) and I will decide in what format and what license that you will get to use that property.”
(If you scratch your disk, tough, you’ll have to buy another one)
If you scratch the disk and you can’t return it because you played it so much it wore out or you mishandled it, just like any other product, if you really want it, buy another one. “It’s my intellectual property (Copyright Holder) and I will decide in what format and what license that you will get to use that property.”
If you don’t agree with the Copyright Holders terms, don’t buy the product. It’s that simple.
Hey, I’d like to drink a bottle of booze outside the nightclub and watch the girls walking down the street. I’m of legal age to drink but it’s against the law in the city to drink on the streets. “You Can’t Always Get What You Want.”
May 11th, 2005 at 5:50 pm
“I’m of legal age to drink but it’s against the law in the city to drink on the streets.”
*****************************************************
HA HA! it’s not illegal where i live - and most of the countries around the world.
if you want to drink - go inside the bar and ogle through the window.
if you want to drink outside, sit in your backyard or on your balcony or fire escape with your own six-pack and play peeping tom with binoculars.
if you don’t get paid for your “art”, complain to the RIAA. they have your money. the customers have already paid.
the customer is always right. full stop.
if you don’t like any of the above options, move to a different country or find a new job.
May 11th, 2005 at 6:43 pm
“You Can’t Always Get What You Want.”
****************************************************
yeah, you can. it’s called freedom of choice. it’s called p2p.
it’s not going away, so deal with it.
May 11th, 2005 at 7:09 pm
(if you don’t get paid for your “art”, complain to the RIAA. they have your money. the customers have already paid.)
The Riaa doesn’t have the artists money. The Riaa is suing file sharers and people that are stealing Copyright Owners property. The customers have already paid? Paid for what, a no adware, spyware version of kazza?
The Riaa is giving file sharers every opotunity to go straight and is giving a big break to the people that are being sued. Usually people are setling their cases for a few thousand dollars. They could sue them for $250,000 per infringment if they wanted to and would probably win. They aren’t out to sue customers that buy music legally, they are just doing what has to be done to stop petty theives from stealing Copyright Holders property and deter file sharing activity.
My art is protected by me. I own 200% of the copyright on my music. If I found someone stealing my property or sharing my music on a network and could get their address, I would first notify them that they are doing something illegal and ask them not to continue their activities. If I found them doing it again, I would sue them personally.
It’s my property and I will decide how much I want to charge for it and in what format I choose to distribute it.
As far as fair use is concerned, here’s my Copyright Notice and license that I issue to my customers:
Copyright Notice: The song (mp3) “The Riaa Beat” is protected by copyright law. You may use this music and make a reasonable number of copies only for your own personal use. You may not otherwise resell, reproduce, distribute, publicly perform, publicly display, or create derivative works of this material, unless authorized by Me Copyright 2004 : All Rights Reserved.
This is the license that I chose to give my customers. I think it’s fair enough for you. There is no DRM and you can copy, transfer to any device, burn a CD etc.. Put it on a file sharing site and I catch you, I ain’t going to like it. Like I said, this is my license that I prefer to give my costomers. Other Copyright Holders might not want to give you such a nonexclusive license. That’s their right.
May 11th, 2005 at 7:31 pm
(yeah, you can. it’s called freedom of choice. it’s called p2p.)
p2p as far as a technology is a good thing. A gang of good uses for it.
Freedom of choice? You’re right! You are free to commit any kind of crime that you want but there are penalties for such bad behavior like illegal file sharing.
(it’s not going away, so deal with it.)
The illegal file sharing sites will eventually find another way to make millions using p2p technology and voluntarily stop illegal sharing. You will have to deal with that!
May 11th, 2005 at 10:09 pm
http://www.apra.com.au/general/about_us-copyright.asp#WhatCopyrightProtects
What rights do music copyright owners have?
Copyright owners in music and lyrics have a number of EXCLUSIVE RIGHTS. Anyone who wants to use a protected work in any of the ways outlined below will usually need the copyright owner’s permission. He or she may also have to pay a royalty.
Copyright owners have the right to:
* Reproduce the work: This includes recording the music or lyrics onto a CD, a film soundtrack, or onto a computer disk. It also includes reproducing the music or lyrics as sheet music.
* Publish the work: This means making your work available to the public for the first time.
* Perform the work in public: This includes playing the work live at a venue, playing a recording of the work in a venue, business or work place, and showing a film containing the work..
* Communicate the work to the public: This includes communicating the work over the Internet, via a music on hold system or by television or radio broadcasting.
* Make an adaptation of the work: This includes arranging or transcribing music, or translating lyrics.
* Rent a recording of the music: This is the right to control the rental of recordings (on CD for example) of the work.
In the music industry, these rights are usually grouped in the following way:
* The mechanical right: This is the right to record a work on record, cassette or CD. This is usually administered by either the Australasian Mechanical Copyright Owners Society (AMCOS) or by music publishers.
* The synchronisation right: This is the right to use music on the soundtrack of a film or video and is usually administered in the same way as the mechanical right.
* The performing right: This is the right to perform a work in public or to communicate a work to the public. It is administered by APRA.
May 12th, 2005 at 4:45 am
Yes this statement is all we need to hear. Its absolutely pathetic that after 30 odd years of illegal movie/music reproductions we have individuals being targeted for the crime of someone else. In reality it should not be illegal to obtain a copy of a copy, only to copy an original. Especially if for financial gains. Prosecute the creator not the followers.
“If you want to control every possible use of your creation then keep it to yourself.”
I agree. That statement shows exactly how greedy these people are. They release media to a world of several BILLION people and expect them all to buy it. Apologies to the RIAA and co. but in the real world where people pay tax, and live basically, we try and make each others lives a little more enriched by sharing.
Sorry if this cuts your massive profits by a few percent.
May 12th, 2005 at 12:10 pm
hello again, anonymous coward.
where are all these wonderful songs? where is your “art” that you want to protect, but wish for people to hear?
who are you?
if you’re an indie, i don’t have a problem with you. and i doubt others here do. if you’re not connected in any way to the RIAA or other illegal cartels (yes, cartels are illegal by definition), you needn’t worry about suffering the wrath of the filesharers.
on the other hand, what’s wrong with free publicity for you and other indies - as well as cartel members? filesharing does that for you at no cost to yourself.
there is absolutely no proof that a shared file equates into a lost sale. even the cartels’ own sales figures show a steady increase in units sold and profits made.
obviously millions of people have not stopped buying music and films. one of the main issues is that so-called “copyright laws” need to be changed and adapted to the 21st century digital world, and afford customers more legal, ethical and moral rights to do what they choose with a legally purchased item. this is why the cartels are so angry because they missed the boat on this one and now can only threaten and sue people into submission. they don’t want to restructure entire industries. they don’t want to offer quality “product”. they want the whole pie and to control the bottom line at their own discretion. that’s a monopoly and that’s illegal.
many more people might be inclined to purchase - NOT RENT - online music if it were availabe at a fair price and in drm-less mp3 format.
you seem so worried that people will “steal” your “art”, but you haven’t shown what that “art” is. if the customer wants it, they might be willing to pay you for it. but you’ll never know unless you tell us what it is.
but please don’t tell people what they can/cannot do with a legally purchased product.
if a person who works in an office writes a 100-page report, they don’t expect to be paid each time that report is copied or read by another person. that’s ridiculous. the person works for the company and that’s their job. and although they did all of the research and presented the report, it still belongs to the company.
in essence, the RIAA is the employer and pays out royalties (or, are supposed to anyway). so an “artist” had a contract to record a certain number of tracks or albums for the company - which contractually belong to the firm. that’s not right either because the firm can shelve it for years and the “artist” will never see a penny. that’s not fair either.
but as an “artist”, he/she still can perform concerts and sell t-shirts and other things, which would bring in a lot more money than the album.
why aren’t you signed to a major label? you obviously want money, and they have it and can get more for you. and they can pay for all of your advertisements and promotions. don’t you want that?
who are you? let’s hear your “art”.
May 12th, 2005 at 3:21 pm
there is absolutely no proof that a shared file equates into a lost sale. even the cartels’ own sales figures show a steady increase in units sold and profits made.
Catflap,
unfortunatly I have to disagree… since 90% of cd’s sold contains filler crap that no one in there right mind would ever buy, and p2p did force the cartel into making singles available online for sale, it haas cost them money…. money they never deserved in the first place, but they will never see it tha way.
May 12th, 2005 at 4:04 pm
*They creator is *granted* the right*
To quote another article found here on p2pnet:
The notion of theft came about in a context where to take property from another was to deprive them of that property. Breach of copyright is not like that, and it is not at all obvious exactly what rights should be given to creators of novelties. There is general agreement that some rights should be given but that is not the same thing as an absolute right.
Society grants copyright and patent protection for the sole reason that it is in the long term interests of society to grant incentives to innovators. By the same token, society is perfectly entitled to judge the extent of the rewards that are needed and to adjust the rules accordingly. Especially in a world where the main beneficiaries of so-called intellectual property are often not the actual creators of that ‘property’.
the full article can be found here.
http://p2pnet.net/story/4806
May 12th, 2005 at 4:23 pm
no report - either independent or paid for by the cartels - has ever proved that a file shared equals a lost sale. it’s ridiculous to think that, when many people use filesharing as a means to test a product. if they like it, they often buy it or go see it.
research it yourself here at p2pnet, variety.com and billboard.com. i’m no-one’s private search engine.
the MPAA and RIAA have even admitted that their reports show the opposite. but they put out spin to delude the mainstream media and “heartland states” and cry wolf.
itunes, yahoo and other rented music services are not a bargain, especially at the prices they charge. and for many, it’s not an option - financially or technically.
sorry you disagree with me, but i’ve done my homework on this.
May 12th, 2005 at 5:35 pm
Hi catflap,
Sorry I wasn’t so much disagreeing with you but trying to point out that the cartels are being forced to make more singles available (in a smart asrse kinda way). I mean geez, the cartel actually responding to the market like most other business’s would have to. It must be just killing them.
The loss of sales due to not being able to push the extra filler crap on customers, by forcing them to but the full cd, is the only way I could see them “losing” any money. I don’t see it as a loss due to file sharing but to market push…. the cartels of course would read it as the other way.
-d-
May 12th, 2005 at 7:15 pm
that’s ok. i getcha.