A comparison of copyright law between the USA, Australia
and Germany with particular reference to the capture of
electronic music files for personal use

by: Bärbel Bohn

A) Introduction 3

B) What is mp3 4

C) “Ripping” a CD 4

1) International level  5

I) Background  5
II) WCT  6

2) European Union & Germany 7

I) Background  7

a) Article 6 EUCD  8

(1) Technological Measures  9
(2) Effectiveness  9
(3) Circumvention  9

II) Germany  10

a) Content of the new provisions  10
b) Anti-Circumvention and Anti- Trafficking Provisions  10
c) Criminal and Civil Liability for Violating § 95a UrhG 11
d) Limitations and exceptions  12

3) USA  12

I) Generally 12
II) Fair use doctrine  14
III) Anti-Circumvention and Anti-trafficking Provisions  15

4) Australia 16

I) Generally 17
II) Fair Dealing  17
III) Circumvention of technological measures 18

D) Conclusion 18
 

A) Introduction

Copyright is the term for a bundle of exclusive rights given by law to the owner of the copyright. Basically the copyright Law is supposed to maintain a fair balance between providing users with reasonable access to the growing information economy on the one hand, and providing recognition and rewards for creators on the other. With the technological progress the importance of copyright Law increased. It became very easy and popular to infringe copyright by using the new technological inventions – such as CD-burner etc and Internet. The protection of copyright is nowadays not just a national issue anymore as the world becomes more addicted to the internet every day. Infringement of copyright in sound recordings is one of the most common infringements.

Nowadays you can see the term “mp3” everywhere. DVD-players can play mp3s, there is special software for your computer to play mp3s, there are special players like ipods or even smaller players which are just the size of a lighter and even your mobile phone can play mp3s now. But what is exactly is mp3? This paper compares copyright law between the USA, Australia and Germany with particular reference to the capture of electronic music files for personal use. There are many ways of capturing mp3s – such as downloading them from the internet, using filesharing software e.g. kazaa or converting music files from a CD into mp3s. As the most common ways to get mp3s is converting music files from a CD into mp3s the main focus of this paper is on the legality of ripping music files from a CD that is legally purchased by you for personal use - comparing USA, Australia and Germany Law. Firstly in the research I will have a look on the international level as a starting point. I will then explain how Europe – in particular Germany – deals with this issue and compare then the German with the Australian and the US Law.

B) What is mp3

Mp3 is the name of the file extension and also the name of the type of file for MPEG, audio layer 3. There are three coding schemes to compress audio signals – layer 1, layer 2 and layer three. The one that is used to compress mp3s (layer 3) uses perceptual audio coding and psychoacoustic compression to remove all superfluous information. That means, that redundant and irrelevant parts of an audio signals, that a human ear doesn’t hear anyway, are removed. The result in real terms is layer 3 shrinks the original sound data from a CD (with a bit rate of 1411.2 kilobits per one second of stereo music) by a factor of 12 (down to 112-128kbps) without sacrificing sound quality¹. Roughly speaking an mp3- file is a copy of a sound file that is reduc ed to the relevant parts of the audio signals.

C) “Ripping” a CD

The most common way to get mp3s is to rip them of a CD with special software, which “grabs” the digital audio files from the CD. After “grabbing” the files they get transferred to the hard drive of your computer from which you can copy them to your mp3-player. The integrity of the data is preserved because the signal does not pass through the computer′s sound card and does not need to be converted to an analogue format. The digital-to-digital transfer creates a WAV file that can then be converted into an MP3 file ². A WIPO/Unesco Committee of Governmental Experts clarified in June 1982 that storage of works and object or related rights in an electronic medium is reproduction. For the digital environment we are living in this understanding was updated so that storage in digital form in an electronic medium constitutes a reproduction within the meaning of Article 9 of the Berne Convention³.

1) International level

As I mentioned above copyright protection is an international issue. There are 16 specialized agencies of the United Nations system of organisations trying to harmonize the intellectual property Law in the different jurisdictions of the world.

I) Background

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1 http://www.webopedia.com/TERM/M/MP3.html

2 http://www.webopedia.com/TERM/R/ripper.html

3 http://www.wipo.int/about-ip/en/iprm/pdf/ch5.pdf#wct 5.219.