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Copyright & Music Piracy

The principle that the work one has created belongs to the creator and should be controlled by them is a global concept. This principle is encoded in Copyright law. Copyright Law is the key element upon which intellectual property rights are created and it is from these property rights that musicians, composers, artists and authors derive their income. The U.S. Constitution Art. I Sec. 8 Cl. 8, lays the foundation of Copyright law by providing that “The Congress shall have Power… to Promote the Progress of Science and the useful Arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” As a copyright owner, an author would have certain exclusive rights over his works such as the Reproduction right (the right to make copies), the Adaptation right (the right to adapt the work into new works – such as translation of the work into a different language), the Public Distribution right (right to distribute copies of the work to the public), the Public Performance right (right to perform the work publicly – such as reciting the novel to the public) and the Public Display right (the right to display copies of the work in public). Copyright law thus prohibits the unauthorized duplication, adaptation or distribution of a creative work.

The Copyright statute does not define the tem “musical work.” A musical work is understood to comprise of both the music and the words that accompany it. All genres of music are covered by the term musical work. A musical work is different from a sound recording. The difference lies in the fact that a musician who composes music or writes a song is the author of a musical work, while a producer who records some sounds creates a sound recording.

The term Piracy is used to describe the deliberate infringement of a copyright on a commercial scale. Music Piracy refers to the illegal duplication and distribution of sound recordings. It mainly comprises of four specific forms – (i) bootleg recordings, (ii) pirate recordings, (iii) online piracy and (iv) counterfeit recordings. Bootleg recordings refers to the duplication, recording, and sale of a performance such as a live concert or broadcast without the permission of the artist or the Record Company which may be entitled to control the recording rights of the artist’s performances. Pirate recordings refer to the unauthorized duplications of music from legitimate recordings for commercial gain. The packing and presentation of a pirate copy does not usually resemble a legitimate commercial release. Online piracy refers to the unauthorized transfer of sound recordings from Internet sites. Counterfeit recordings are the unauthorized copying of the sound as well as the artwork, trademark, label and packaging of the original recording. The main aim of counterfeit products is to mislead the consumer into thinking that they are buying the genuine product.

The U.S. Recording Industry is represented by the Recording Industry Association of America (RIAA). With a mission to foster a business and a legal climate to support and promote its members’ creative and financial vitality, the RIAA members create, manufacture and/or distribute approximately 85% of all legitimate recordings produced and sold in the United States. The RIAA is working to protect the intellectual property rights and First Amendment Rights of artists, conduct consumer, industry and technical research; and monitor and review state and federal laws, regulations and policies. One of the primary objectives of the RIAA is educating people about music piracy. The RIAA states in simple words that going online and downloading music without permission is as good as walking into a store and shoplifting. A report published by the Institute of Policy Innovation provides that global music piracy causes $12.5 billion of economic losses every year, 71,060 U.S. jobs lost, a loss of $2.7 billion in workers' earnings, and a loss of $422 million in tax revenues, $291 million in personal income tax and $131 million in lost corporate income and production taxes. Considering the amount of loss that the music industry faces mainly because of piracy, one might wonder whether there is a provision to get access to one’s favorite songs without being held liable for piracy. The answer is “YES!” Legal downloading of music is extremely easy and cost effective. The RIAA states that record companies have licensed hundreds of digital partners offering download and subscription services, cable and satellite radio services, Internet radio webcasting, legitimate peer-to-peer or P2P services, social networking services, video-on demand, podcasts, CD kiosks and digital jukeboxes, mobile products such as ringbacks, ringtunes, wallpapers, audio and video downloads. The International Federation of the Phonographic Industry or the IFPI which represents the recording industry worldwide states that there are more than 10 million licensed tracks available on more than 400 services worldwide. The IFPI represents 1400 members across 72 countries and has affiliated industry representations in about 44 countries. The IFPI reports that about 40 billion files were illegally file-shared in the year 2008 giving a piracy rate of about 95%.

What happens when a composer or owner of a sound recording finds out that his work is being reproduced digitally without his permission?

The Digital Millennium Copyright Act of 1998 or the DMCA as it is popularly known provides the answer to this question which probably haunts most of the artists today. The Internet, which is providing a gateway of access to almost anything that seems to be created, is posing a threat to the artists who find their works being “uploaded” or “downloaded” without their permission. This invariably infringes the exclusive rights provided by the Copyright Act which was enacted to protect the interests of the artists. The DMCA has enacted § 512 (c) which is more popularly known as the Safe Harbor Provision which provides a method by which an online service provider can limit his liability for vicarious infringement for illegal infringing copyrighted works stored on his system by the website’s subscribers. §512 (c) takes birth from the district court decision in Religious Technology Center v. Netcom On-Line Communication Services, 907 F.Supp. 1361 (N.D. Cal. 1995), which refused to hold an ISP liable for the infringing activities of its users because the ISP’s role consisted entirely of serving as a passive conduit for the transmissions of its users, without in any way inducing, influencing, encouraging or selecting among their infringing activities. For an online service provider to be eligible for protection under the Safe Harbor provision, he can appoint an agent with the Copyright Office. If an owner believes that his copyright is being infringed, he can send a notice to the online service provider. Once such a notice is received, the online service provider must either remove and/or disable access to the allegedly infringing material. After receiving the online service provider’s notice, the subscriber can send a counter notification. If the subscriber fails to respond to such a notice, the infringing content remains disabled or removed. If the subscriber provides a notification, this will be conveyed to the copyright owner. Litigation is initiated by the copyright owner against the alleged infringer and a notice to this effect should be sent to the online service provider. If no such action is taken by the copyright owner after receiving the counter notice, the online service provider must repost the disable or removed material within 2 weeks of its receipt of the counter notification from the subscriber. If litigation is initiated by the copyright owner, the online service provider must remove or disable the infringing material until it is resolved by the court.

Whom does the law hold responsible?

According to 17 U.S.C §501(a) ( c ) of the Copyright Act, copyright infringement occurs when a party engages in importing copies or phonorecords into the United States in violation of §602. Secondary Liability for copyright infringement is also enforced although it is not expressly recognized in the Statute. Secondary Liability occurs in the following two forms – Contributory and Vicarious Liability. Under Secondary Liability, the defendant can be found liable for copyright infringement even though he did not personally engage in the infringing activity. However, to enforce an action under secondary liability, an underlying act of direct infringement must occur. Contributory infringement is designed to target intentional contributions to infringement. Two key elements that pave the way for contributory infringement are (a) knowledge of the infringement and (b) continued substantial and material provision of means. The concept of contributory liability for copyright infringement was laid down in Gershwin Publishing Corp. v. Columbia Artists Management, Inc., 443 F.2d 1159, 1162 (2d Cir. 1971). The court expressly held that “One who, with knowledge of the infringing activity, induces, causes or materially contributes to the infringing conduct of another, may be held liable as a ‘contributory’ infringer.” Id. A video rental store which permitted its customers to view its videos in the store was held to be contributorily liable for those infringing performances. Columbia Pictures Indus., Inc. v. Aveco, Inc., 88 F.2d 59 (3d Cir. 1986).

Vicarious liability is based on the principle of respondeat superior – where employers are held vicariously liable for infringing acts performed by their employees who are acting within the scope of their employment. Vicarious infringement is designed to target intentional contributions to infringement provision of means. Vicarious infringement requires two key factors – (a) ability and right to control infringing conduct and (b) receipt of financial benefit from the conduct. The court in Fonavisa, Inc. v. Cherry Auction, Inc., 76 F. 3d 259 (9th Cir. 1996), held that a flea market operator was vicariously liable for copyright infringement because he had knowledge of the fact that vendors were selling counterfeit recordings and supplied them with space, customers, advertising and support services in return for a fee. However, courts have refused to impose vicarious liability on a landlord/tenant relationship. The main reason cited for such a refusal is that the landlord lacks the right and the ability to supervise the tenant’s infringing activities.

How does one identify whether a CD is genuine or a pirated copy?

There are certain features of a CD that clearly indicate that it is a pirated copy. One should keep a lookout for any or all of the following points to determine whether a CD is genuine or not –

How much are you paying? – Pirated CDs are generally sold at a price much lower than the actual retail value.
Where are you buying it from? – CDs bought at a flea market or a swap meet or sold on the street are more likely to be infringing copies of the original
What are the features of the CD? – Pirated CDs are sometimes enclosed in a poor quality cellophane envelope as opposed to the upscale factory quality of shrink wrap. They are recorded on Recordable Compact Disks, or CD-Rs which are characterized by bluish or a greenish tint. You may also find misspelled words on the cover of the CD. Usually, pirated CDs contain the “top 10 hits” or “mix” or “DJ” recordings. The bar code too may be missing on the package.

Stop piracy in your own way by refusing to purchase pirated CDs.

About the Author

Reema Patil
Legal Associate
Unicita Consulting Private Limited

http://unicitaconsulting.com/

reema@unicitaconsulting.com