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Net Law Roundup #48

by Jeremy Malcolm, Internet lawyer

A reader recently asked me:

I want to know, if I buy the CD from a shop and then transfer it to my MP3 player to listen to while I run, is that illegal as I own a copy of the CD and it is for my personal use.

Believe it or not, this is illegal in Australia. In this respect we are out of line with other countries including even the United States. Although the US copyright law has been much-criticised, at least it does permit copying of music that you own from one medium to another, such as CD to computer or iPod. The drafters of the US copyright legislation regarded this as an example of "fair use"; a description which most reasonable people in Australia would probably agree with.

Unfortunately in Australia, our copyright law's concept of "fair dealing" is much narrower. It requires that the dealing be made for purposes of research or study, criticism or review, reporting news, or obtaining professional advice such as legal advice.

Even then, "fair dealing" doesn't normally allow you to copy an entire copyright work. 10% of a printed work is deemed to be fair, but beyond that you have to show that your dealing is fair based on the nature of the work, the purpose for which you are using it, the possibility of obtaining the work commercially, the effect of your use on the value or market for the work, and the amount taken.

Our backward copyright law is one of the reasons why the online music store in Apple's iTunes software is disabled for Australian users, and why the only legal Australian music download services are expensive and offer their downloads only in the crippled Windows Media Format.

If owners of MP3 players in Australia all observed the letter of the law, they would have wasted the money they spent on their players! Since our copyright law has just been strengthened in copyright owners' favour thanks to the Australia-United States Free Trade Agreement, the sorry state of affairs described above is calling out for some sensible copyright law reform to redress the balance towards consumers.

Please Note: The information contained in this article is general in nature and cannot be regarded as anything more than general comment. Readers of this article should not act on the basis of this comment without consulting one of iLaw’s legal practitioners who will consider their particular circumstances