By Rebekah O’Sullivan and Matt Burgess, Director.
An interesting question that has attracted various media attention of late is: Are the digital files that we buy on iTunes, our property? Is my sound file of Nirvana playing ‘Teen Spirit,’ mine to leave to my children or do my rights to ownership expire with me?
The music or movies we buy on a CD or DVD are our property but a digital file may or may not be. Jonathan Zittrain, Professor of Law and Computer Science at Harvard University, states, ‘Services have tended to go towards not having as many digital restrictions on what you can do when you pay for music and download it. So, in that sense, you may well be able to burn a CD, give it to your friends, bequeath it to your kids, that kind of thing. But to the extent that we are finding ourselves renting our music, subscribing to our music, having Webcasts, having things like iTunes and Spotify match and harmonise our music across devices, that is a service – you don’t own that stuff. And should you stop paying your bill or should the terms change, you may find your access to that music in the Cloud gone.’
It seems unfair considering that usually when you purchase music from the iTunes store, a pop up window generally comes up on your computer screen stating, ‘Are you sure you wish to purchase this song?’ Surely, this means that I own this song?
Professor Zittrain explains that the fine print in those iTunes Service Agreements suggests you are in effect ‘renting’ those songs. He further explains that even though some of those services express that you are ‘buying’ the songs, this doesn’t suggest you have property rights in the true sense. What you can and can’t do with that file is largely governed by private contract and intellectual property law. For example, you cannot copy it to another disk and transfer it to someone over the Internet. That is a breach of copyright law as you are making a copy of a song rather than dispossessing yourself of that song. So therefore, if that is the type of thing you are doing, all the information in the license about owning the file, doesn’t apply. There are certain limitations.
What does the Law say?
Generally, music, movies and sound recordings (together with many other creations) attract legal protection under the Copyright Act (Cth) 1968 in Australia. The general rule of ownership is that the author or composer of the music owns it. Copyright ownership is different from physical ownership. Even though you may own a CD this does not mean you own the copyright in the works on that CD. In order to reproduce (e.g including photocopying, recording, scanning), share (e.g over the internet, via cable or email), adapt or communicate this music with the public, you must have the permission of the copyright owner. Without permission, you will be infringing copyright. The duration of copyright exists for the life of the author plus 70 years in Australia.
There are exceptions to general copyright law. If you are an educational institution, student or researcher you may have a statutory license that permits the copying of music. These are called Fair Dealing provisions. The Copyright Act has provisions permitting the copying of material for certain purposes without being in breach of copyright. However, strict limits apply to the copying and using of material and it is recommended that students and teachers view the Institution’s guide on Intellectual Property and Copyright.
So how can I ensure that my music library is protected so I may pass it on to my loved ones?
Perhaps the answer is to bequeath our hard drives and not the content of the hard drives. However even if we do have the right to bequeath our hard drive but not the content in the future, whose to say our loved ones will have a iPod to play it on!
This blog is for discussion purposes only. This must not be considered legal advice.
For legal advice on this topic and references to any information in this article, please contact
Matt Burgess, Director:
Phone: +61 405 722 739
matt*bselaw.com.au
Skype:burgoasp
Connect with Matt on Linked In
Image Credit: Grant Cochrane
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