As part of their Stop Piracy campaign, the Recording Industry of South Africa (RiSA) warns South Africans that they aren’t permitted by law to copy their CDs to a computer file format such as MP3.<\/p>\n
When MyBroadband previously followed up on these claims<\/a> a number of intellectual property lawyers in South Africa confirmed it.<\/p>\n Tobias Schonwetter<\/a>, legal lead of Creative Commons South Africa; Lance Michalson<\/a> from Michalsons Attorneys and Andrew Rens<\/a> all agree that you may not “format shift” recordings you don’t own the rights to.<\/p>\n David du Plessis, operations director of RiSA, explained that the default position is that you may not copy or reproduce a sound recording or musical work without the authorization of the copyright holder.<\/p>\n Michalsons agrees with Du Plessis, adding that “while copying music may not infringe the copyright of the artists, it will always infringe the copyright of the recording studio.”<\/p>\n Copyright holders may elect to change the terms of the license, making such copying perfectly legal, Michalson said. “This is why it is important to know what your licence for the music contains,” he said.<\/p>\n Disagreement<\/strong><\/p>\n Warren Weertman, a partner and director of Bowman Gilfillan who also represents the Business Software Alliance (BSA) in South Africa, however disagrees.<\/p>\n If a statute, which in this case is the South African Copyright Act of 1978, is silent about something you have to revert to common law, said Weertman.<\/p>\n In his opinion the Copyright Act doesn’t make specific mention of a fair dealing exclusion for private copying of music for personal use and thus before it can be considered unlawful one must look at the common law first.<\/p>\n Du Plessis however feels that it simply can’t be argued that the Copyright Act is silent on format shifting when it comes to sound recordings and musical works.<\/p>\n The Act grants specific exclusive rights to authors from section 6 to 11B and then from section 12 to 19B it allows specific exceptions, du Plessis explains. “Unless a user’s usage falls under the exceptions provided for in the Copyright Act, such usage constitutes an infringing action,” said du Plessis.<\/p>\n Reading over the act it seems that section 17 is the culprit. It enumerates the exclusions applicable to sound recordings, referring to the “fair dealing” provisions made for literary and musical works.<\/p>\n This section specifically included references to “fair dealing” for the purposes of criticism and review as well as the reporting of current events, but not for personal or private use.<\/p>\n Format shifting not wrong<\/strong><\/p>\n Regardless of his interpretation of the act, du Plessis said that RiSA isn’t interested in chasing down people making private copies of music they own a license to.<\/p>\n But despite this statement the Stop Piracy website still runs the Flash banner which proclaims: “You may not compress sound recordings to MP3.”<\/p>\n Other than his legal disagreement with this statement, Weertman argues that if you’ve purchased a license to music you should be able to listen to it on any music player.<\/p>\n Of casting stones and glass houses<\/strong><\/p>\n Since Weertman represents the BSA we asked him whether his views on music licensing should also apply to software usage.<\/p>\n “I don’t think it would be a good idea to treat music and software the same way since the way that they are used is different,” Weertman answered. “The laws need to be flexible enough to give people a base model but then allow them the flexibility to choose other licensing models.”<\/p>\n Weertman added that companies that develop and release consumer software such as Symantec and Microsoft have begun allowing multiple installations per license, but that it’s worthwhile debating personal use provisions with the software vendors.<\/p>\n Such a dialogue is very important according to Weertman, as consensus on potential amendments to the Copyright Act can only be reached when people talk to one another.<\/p>\n