cyberspace cowboys

01 June 2001

Petra Williams

Protecting Music on the Internet - the UK Perspective

Introduction

On 26 July, the Recording Industry won an important legal victory, when San Francisco District Court Judge Marilyn Patel granted a preliminary injunction against the music swapping service, Napster. However, although the Industry may have won this particular battle, the war to control music on the Internet has really only just begun. In the States, Napster has already launched an appeal and obtained a stay of the injunction allowing it to continue to provide its service at least until the appeal is heard.

This article examines whether current legislation in the UK is ready and able to deal with Napster and other similar services which are rapidly proliferating on the Internet. Closer to home, there is for example the threat of Freenet, an anonymous music swapping system created by a 23-year-old Edinburgh University graduate.

The US experience - Napster

Napster has created a system that allows Internet users who log onto Napster=s servers to obtain mp3 music files that are stored on the computers of other users who are connected to the Napster service at the same time. Napster provides advanced search capabilities, as well as direct hyperlinks to the mp3 files held on its users computers. However, Napster does not make, receive or store any copies of music files itself.

Sounds like a great idea for music lovers. However, it is a nightmare for music owners who have no control over such use of their work and receive no payment whatsoever (the Napster service is free to users). Not surprisingly, the Recording Industry Association of America (RIAA) has found that the overwhelming majority of mp3 files changing hands on the Napster service are infringing copies.

So from a UK perspective, what can be done to prevent unauthorised use of music on the Internet? It is only a matter of time, before the UK Courts will have to address these issues. Are they armed and ready?

Identifying the work entitled to copyright protection

A mp3 music file will usually contain three works that are entitled to copyright protection in the UK under section 1 of the Copyright, Designs and Patents Act 1988 ("the CDPA"):

  • the musical composition written by the songwriter (a "musical work";
  • the lyrics (a "literary work"); and
  • the sound recording of someone performing the musical work and singing any lyrics (a "sound recording").

For the purposes of this article, I refer to all these works collectively, save where the CDPA draws a distinction.

The different works in a music track will often be under different control or ownership. Therefore, a number of different parties may be interested to take action to stop unlawful use of a particular music file, including music collecting societies, record companies, artists, music publishers and composers.

Primary Acts of Infringement

The primary acts restricted by the copyright in a music track are set out in section 16 (1) of CDPA, and can be summarised as follows:

  • the reproduction right;
  • the distribution right;
  • the public performance right;
  • the broadcasting right; and
  • the cable programme service right.

These acts will amount to infringement of copyright where they are carried out without the consent of the copyright owner. They are torts of strict liability, in that knowledge that the act is infringing copyright is immaterial.

Copyright will also be infringed where a person authorises any of the above-mentioned acts without consent. Such a person could also be liable for procuring or inciting infringing acts.

Whether the delivery of music over the Internet involves some or all of these acts requires careful examination of the legislation, which has not necessarily been drafted with current technology in mind.

Reproduction

The reproduction right is the most fundamental right of copyright owners, and is broadly defined in section 17 of the CDPA. It covers the reproduction of literary and musical works in any material form, including storing them in any medium by electronic means. Sound recordings are not expressly included in this aspect of the definition, but are commonly considered to be protected in this regard. Furthermore, the making of copies which are transient or incidental to some other use of the work, amounts to a restricted act.

It will be immediately apparent that this definition can easily be used in the context of exploitation of music on the Internet, where an infringing act could occur at several different points. For example, a copy of a music track will be made on the computer or server where the file is being stored. Each user downloading a music track from the Internet will then make a further copy of it. There may also be a number of intermediaries who make copies.

Distribution

Conversely, the distribution right set out in section 18 of the CDPA does not appear to fit the Internet environment quite so comfortably.

Where the term "copies" is used in defining the distribution right, it is to be construed in accordance with the reproduction right definition in section 17 (see above). Therefore, reference to copies in section 18 includes electronic copies. The difficulty lies in the definition of distribution as "the act of putting into circulation in the European Economic Area copies not previously put into circulation". This tends to suggest the right applies to tangible copies rather than intangible ones. Furthermore, the idea of "putting into circulation" does not seem to work in the online world, where none of the copies distributed will be circulated on to others. Instead new copies may be made and passed on.

It is arguable therefore whether the distribution right can be applied in the fight to combat music piracy on the Internet.

Public Performance

The performance of a literary or musical work in public is an act restricted by copyright (section 19 of the CDPA). Although this does not cover sound recordings per se it does include presentation by means of a sound recording, broadcast or cable programme.

The issue here is whether the delivery of music over the Internet could be said to be "in public". This term has been the subject of many Court decisions, based on analysis of the facts in each case. In the context of the Internet, the audience is likely to be made up of individuals in private or domestic situations, who are unlikely to be considered to be "in public". However, there could well be specific situations where this right will apply to Internet use, for example, the streaming or webcasting of music to an audience.

Broadcasting

A "broadcast" is defined in section 6(1) of CDPA as a transmission by "wireless means". At the moment, the transmission of music files over the Internet generally involves transmission via computers connected by a network of cables. Therefore, the broadcasting right usually will not apply.

Of course, we now have new technology such as Wireless Application Protocol (WAP) which enables users to access the Internet via mobile telephones, and amongst other things, download music files on demand. However, even where this is used, the broadcast right is unlikely to apply, as the CDPA requires the content to be capable of receipt by or transmission to the public, defined in the same way as the public performance right.

Inclusion in a Cable Programme Service

The other side of the coin to broadcasting is inclusion of a work in a cable programme service, which is a restricted act under section 20 of the CDPA. Although it is complex, this right fits the Internet environment in a number of respects.

A cable programme service is defined in section 7 (1) of the CDPA as a service which consists wholly or mainly in sending visual images, sounds or other information by means of a telecommunications system, otherwise than by wireless telegraphy. It must be for reception either at two or more places (whether for simultaneous reception or at different times in response to requests by different users), or for presentation to members of the public. The latter public element creates the same obstacles as it does with the public performance right. However, a web site which contains copyright works (such as music files), which it makes available to users and is accessible from numerous places via the Internet, clearly falls within the first option. This proposition was considered and accepted by the Scottish Courts in the case of Shetland Times v Wills [1997] F.S.R 604.

Section 7(2) of CDPA contains a number of exceptions to the definition of cable service programme, the most important of which is set out in sub paragraph (a) and relates to interactive services. This exception is defined as follows:-

"a service or part of a service of which it is an essential feature that while visual images, sounds or other information are being conveyed by the person providing the service there will or may be sent from each place of reception, by means of the same system or (as the case may be) the same part of it, information (other than signals sent for the operation or control of the service) for reception by the person providing the service or other persons receiving it;"

Signals sent for the operation or control of the service are expressed not to be included in the exception. This means the fact that a web site requires users to send a request for material on the site does not exclude it from the definition of a cable programme service. However, where there is clear interactivity on a web site that will fall within the exception. Accordingly, unfortunately for the recording industry, a service which acts as a host enabling users to exchange information or material, such as music files, is therefore likely to fall within this exemption, as will chat rooms.

It is important to note that it is only the interactive part of a cable programme service which is capable of exemption under subparagraph (a). Accordingly, inclusion of a music track in such a service may still amount to an infringing act.

Authorisation

Section 16(2) of the CDPA provides that copyright in a work is infringed by a person who authorises another to carry out an infringing act. At first glance this would appear to be very useful. However, as a number of Court decisions have shown, liability for authorisation is often difficult to establish.

It has been held that an authorisation "can only come from someone having or purporting to have authority, and an act is not authorised by someone who merely enables or possibly assists or even encourages another to do that act, but does not purport to have any authority..." (As per Whitford J in CBS Inc v Ames Records & Tapes Ltd [1982] Ch.91 at 106, approved in Amstrad Consumer Electronics Plc v British Phonographic Industry Limited [1986] FSR 159, CA and CBS Songs Ltd v Amstrad plc [1988] A.C.1013 HL).

Merely providing a person with the means to make infringing copies of music files or carry out other infringing acts on the Internet is therefore unlikely to amount to authorisation. This will be particularly so if standard notices are included on a relevant site, purporting to require users to obtain the consent of copyright owners as a condition of use, as in Napster's case. Each situation will of course depend on its own facts, but in this streetwise age, an action based on authorisation will undoubtedly prove to be an uphill struggle.

Secondary Acts of Infringement

As well as primary acts of infringement, there are a number of secondary acts which require proof of a certain degree of knowledge on the part of the infringer.

The main acts of secondary infringement involve dealings with infringing copies and are set out in section 23 of CDPA. These include the following acts in relation to infringing copies of works:

  • possessing in the course of a business;
  • selling or letting for hire, or offering to sell or let for hire; and
  • in the course of business exhibiting in public or distributing.

There is no reason why this provision should not apply to infringing copies of works held on a computer or server and therefore, this could prove useful in dealing with some of the less sophisticated music pirates.

Section 24 may also be of some limited assistance.

Sub paragraph 24(1) provides a cause of action against persons dealing with articles specifically designed or adapted for making copies of a work.

Sub paragraph 24(2) addresses transmission of a work by a telecommunications system (otherwise than by broadcasting or inclusion in a cable programme service), where the person transmitting knows or has reason to believe that infringing copies of the work will be made by means of the reception of the transmission. Transmission has to have made from the UK but it can be received elsewhere. This would therefore appear to cover a person who, from the UK, posts an unauthorised copy of a work such as a music file, on a web site anywhere in the world.

Conclusions

Under our existing legal framework in the UK, the fundamental acts of infringement in relation the use of music on the Internet are being carried out by individual Internet users. It would obviously be impractical and fruitless for the Record Industry to take action against such individuals. Indeed to do so, would be to attack the very fans the Industry wants and needs to attract as customers. On the other hand, the operators of services that facilitate such acts, on the whole, can distance themselves sufficiently from consumers to ensure that they do not fall foul of the law.

For the future, legal practitioners will be assisted to a certain extent by the E-Commerce Directive (approved by the European Parliament on 4 May 2000) and the long awaited Copyright Directive, which may still be subject to some further changes before it is finally approved. However, some question whether, given the nature of the Internet, there can be any way to effectively control the theft of music in cyberspace. As numerous new music swapping systems appear to take the place of Napster, it does seem that the RIAA's recent victory could be a little more than a pyrrhic one.