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

Contents

A) Introduction

B) What is mp3

C) “Ripping” a CD
1) International level
I) Background
II) WCT
2) European Union & Germany
I) Background
a) Article 6 EUCD
(1) Technological Measures
(2) Effectiveness
(3) Circumvention
II) Germany
a) Content of the new provisions
b) Anti-Circumvention and Anti-Trafficking Provisions
c) Criminal and Civil Liability for Violating § 95a UrhG
d) Limitations and exceptions
3) USA
I) Generally
II) Fair use doctrine
III) Anti-Circumvention and Anti-trafficking Provisions
4) Australia
I) Generally
II) Fair Dealing
III) Circumvention of technological measures

D) Conclusion

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

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 quality^[1].

Roughly speaking an mp3-file is a copy of a sound file that is reduced 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 Convention^[3].

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

WIPO (World Intellectual Property Organisation) is one of these international organisations “dedicated to promoting the use and protection of works of the human spirit”.^[4] The roots of WIPO go back to 1883 and it administers 23 international treaties dealing with different aspects of intellectual property protection. 182 nations are member states of WIPO including USA, Germany and Australia^[5]. This shows the scope and popularity of WIPO and makes it to a superpower within the IP Legislation. Whenever it comes to national and international understanding and interpretation of the current law, WIPO’s conventions and starting points are of great importance.

The WIPO Diplomatic Conference on Certain Copyright and Neighbouring Rights Questions adopted two new Treaties in December 1996: the "WIPO Copyright Treaty" and the "WIPO Performances and Phonograms Treaty"^[6]. They were designed principally to adapt the legal framework of copyright and related rights to new technology^[7].

The aspect of the treaties is that the parties must create their own national laws to protect the technological measures that prevent copyright infringement.

WCT updates the international protection for copyright and related rights significantly, not least with regard to the so-called "digital agenda", and improve the means to fight piracy worldwide. The WCT was enacted as a “special agreement” under Article 20 of the Berne Convention^[8]. It was designed to fulfil several roles, after examining the impact of the TRIPs agreement – expansion of protected subject matter to include computer programs^[9], communication to the public^[10] and protection against circumvention of encryption technologies^[11].

The WIPO Copyright Treaty was drafted in order to provide international rules to solve the (perceived) problems created by technological developments, more particularly, the problems caused by the rise of digital technology and the Internet^[12].

II) WCT

The WCT which came into force on March 6, 2002^[13], sets forth only minimum requirements.

According to WCT art 11 the Contracting Parties shall provide “adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors in connection with the exercise of their rights under this Treaty”. That means that the contracting parties may go beyond the provisions of the WCT and afford technological measures greater protection^[14].

Article 11 WCT protects only the measures “used by authors”. In practice, however, such measures are not used or applied by the authors themselves. Rather their agents or licensees act with the consent of the author. Therefore, the provision must be interpreted to cover not only measures applied by the authors, but also those applied by agents or licensees^[15].

Moreover the protection of technological measures “that restrict acts … which are not authorized by the author concerned or permitted by law” are regulated. Contracting parties are therefore not obliged to protect measures that restrict acts that are either authorized by the author or permitted by law by way of an exception or limitation^[16].

Article 11 WCT requires protection only against the actual circumvention of protection measures that restrict acts that are either not authorized by the author or not permitted by law. But Copyright owners are only protected against acts that would also be copyright infringement^[17].

[...]

^[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.

^[4] http://www.wipo.int/about-wipo/en/

^[5] http://www.wipo.int/directory/en/member_states.jsp

^[6] http://www.wipo.int/about-ip/en/iprm/pdf/ch5.pdf#wppt 5.553.

^[7] J. REINBOTHE, M. MARTIN-PRATT, S. VON LEWINSKI: The New WIPO Treaties: p. 270 and onwards.

^[8] http://www.wipo.int/about-ip/en/iprm/pdf/ch5.pdf#wct 5.212.

^[9] Article 4 WCT.

^[10] Article 8 WCT.

^[11] Article 11 WCT

^[12] Kamiel J. Koelman and Menno Briët 1.

^[13] http://www.wipo.int/treaties/en/ShowResults.jsp?lang=en&treaty_id=16 .

^[14] Reinbothe & von Lewinski at 145.

^[15] Reinbothe & von Lewinski at 146.

^[16] Reinbothe & von Lewinski at 146.

^[17] Wencke Bäsler, at p 6.