In their annual Digital Music Report earlier this year, the International Federation of the Phonographic Industry reported that over one fifth of internet users globally access music illegally online on a monthly basis.
While it seems that a large portion of music and movie lovers now value their entertainment as a ?free? resource, it is important to be aware of the legal rights and risks involved in doing so.
Copyright ? the basics
Most television shows, books and music created in the 20th and 21st centuries will be protected by international copyright laws (unless the director, author or artist died over 70 years ago). There is no requirement of registration, therefore once a film or piece of music is created, for example, it is automatically protected by copyright.
Once a copyright work is in existence, the owner (either the author or the person paying for its production), has a bundle of exclusive rights that only they are permitted to use. These rights include the right to reproduce the work, the right to perform the work in public and the right to communicate the work (i.e. make it available online) amongst a few others.
Essentially, the copyright owner has a monopoly to do as they like with the copyrighted work.
Therefore, simply because it is free does not necessarily mean it is illegal. The owner can choose to allow others to use the copyrighted work for free. However, this is an unusual occurrence (Radiohead, anyone?).
If access to the song or film is not directly from the owners website, or a legitimate service like Myspace or Spotify, most of the music and movies found online for free are likely to be illegal.
This is because the process of transmitting the owner?s copyrighted work online by uploading and then downloading it is performing two of the owner?s exclusive rights without their permission, namely the reproduction right and the communication right. This is a direct infringement of copyright.
What happens if you get caught?
As the law and attitudes on illegal downloads are constantly changing, it is difficult to answer this question with much certainty.
Thankfully, the rise of services such as Spotify, Rdio and iView (ABC?s online streaming service) means that there are an increasing number of legitimate avenues to obtain copyrighted music, television or film cheaply or even for free.
While many Internet Service Providers (ISPs) have a policy to deal with copyright infringement, the implementation of an industry wide code that applies to all ISPs has yet to be agreed upon.
A recent High Court case against iiNet (check out here for more details) has reduced a substantial amount of pressure on ISPs to be responsible for its users illegal downloads. However, ISPs may still pass on notices from copyright owners to users they think have infringed their copyright although they may not be required to. These are called ?Infringement Notices?.
Infringement notices ? should you pay attention?
In short, yes.
There are two main consequences of an Infringement Notice:
1. Your ISP may elect to cancel your internet connection if they continue to receive notices from the copyright owner that you are infringing their copyright (usually you must be notified five times before they do so); and
2. The copyright owner may choose to take you to court to recover damages (However, at this point in time, ISPs are not required to give their clients? contact details and identities to the copyright owner ? this would need to be acquired by court order).
While court cases against individuals for copyright infringement are incredibly rare in Australia given the expenses involved, in cases involving copyright infringement (not online) damages awarded for copyright infringement have ranged anywhere from a few hundred dollars to a few hundred thousand.
Conversely, in the United States individuals have previously been targeted for infringing copyright online and given fines of up to $675,000. Further, New Zealand has recently enacted a ?3 strike policy? whereby ISPs are required to pass on notices to customers that a copyright owner alleges is infringing copyright. Once a third notice is sent, the owner may take the customer to the ?Copyright Tribunal? where the minimum penalty is $275 and maximum $15,000, payable to the copyright owner.
Given that the Internet is worldwide medium, penalties are not restricted to Australian law. It is possible, even if only remotely, that an action could be taken against you by US authorities. Currently, a student from the UK that ran a website linking to other websites were users could watch television shows online, is facing extradition to the US over copyright infringement claims where he faces fine of up to $250,000 or five years in prison per song or movie.
Conclusion
Whilst the odds of being caught are somewhat low (particularly given the recent iiNet case), copyright owners are increasingly joining forces and taking new and innovative steps to catch copyright infringers.
Most likely the next step for copyright owners is to lobby for legislative change. However, many are hoping that the rapid growth of legitimate services such as Rdio and Spotify continue to incite the industry to create new business models and better ways to access copyrighted material legally in the digital age.
Source: http://www.studiolegal.com.au/blog/?p=141
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