Illegal Downloading of Music

What is the law in relation to illegal downloading of music?

Since the onset of the internet one of the biggest areas which have caused problems for large business and industries is in relation to the illegal access to and downloading of music. Prior to the internet it was much easier for the music industry to protect the music produced by their artists as this was restricted to formats such as vinyl, audio tape or compact disc.

Although there may have been some illegal copying of tapes and CD’s this did not have much of an effect on the music industry as sales for both of these formats were still high.

Since the onset of the internet, practices such as illegal downloading and file sharing has significantly reduced the revenue made when music artists release new singles or albums.

Why do record companies wish to restrict illegal downloading of their music?

When record companies put out singles or albums by a particular artist money will be made by both the artist and the record companies dependent upon sales of CD’s and legal downloads of MP3’s. If people are continually downloading music illegally then neither the artist or the record company will be able to make any money therefore weakening the rights that they have in the original music.

What rights are there under UK law for music?

  • In the UK music is protected by the law of copyright under the Copyright, Designs and Patents Act 1998.
  • Copyright protects both the original musical score and the recording.
  • When dealing with illegal downloads it is the protection of the recording of the music which is the main focus. The protection in the musical score is designed to stop other artists using significant parts of the copyrighted work.

Who owns the copyright in a musical recording?

As is the case with all areas of copyright the owner is the person who has created the work – this right arises automatically once the work has been created.

As is usual, however, when music is produced for commercial gain the artist will be signed to a record company which deals will the commercial distribution of the music. Ownership will therefore usually be joint ownership by both the artist and the record company.

What protection is given to a musical recording?

As is the case with all forms of copyright the owner has the right to use the work and distribute the work in any way which they see fit.  Copyright in music therefore enables the person who created the product to get credit and financial benefit from it, as well as control over where it is distributed.

Accordingly if any other unauthorised party seeks to exploit these rights in a work protected by copyright they will have infringed the work.

If you download music for free from a site which is not a site authorised by the owner of the work to provide downloads then you will have infringed the copyright in the work.

How to record companies seek to protect the copyright in musical works?

Digital Rights Management

What is meant by Digital Rights Management?

Digital Rights Management or DRM is a process which enables the owner of the copyright control over the number of viewings, plays and copies and even the devices which the content can be played or viewed on.

How can this be done?

In the music industry this is done through something called restrictive technology. This means that the technology that the music can be listened through is restricted. Probably the best example of this is CD’s which are installed with DRM protection meaning that they cannot be played on computers. This will therefore mean that they cannot be ripped and then shared with others.

Internet processes for obtaining music

What are the possible ways which I can obtain music on the internet and are they legal?

There are various ways which music can be obtained via the internet. They are as follows:

  • Peer to peer or file sharing
  • Downloading

Peer to Peer

What is meant by peer to peer?

Peer to peer sharing is a process which enables you to download sound files from other online users. The person with whom you share the files does not have to be on the same network as you – they can be anywhere in the world. Consequently this is a process which has proved very adept at enabling internet users to obtain a high volume of music files but is one which has not gone unnoticed the music industry.  Peer to peer file sharing sites are illegal.

Napster

What is napster?

Napster was the first real popular peer to peer file sharing website and became very prominent during the 1990’s.

Napster was held to be breaking copyright laws as it provided music which has the subject of copyright for free. Napster had no legal rights to the files and so consequently wasn’t paying anything to the record companies for the right to use the music recordings.

Downloading

Downloading is a process whereby you access a specific site which contains the various files for music which you can access by downloading. These will then be stored on the hard drive of your computer.

Not all downloading is illegal but if you are downloading for free then it is illegal and you will be infringing the copyright in the music. There are various websites such as iTunes run by Apple whereby you can pay for legal downloads. These legal sites are expressly authorised by the music industry to provide legal downloads and so therefore the downloads apply in relation to chart position etc and there will be no infringement of copyright.

How do legal downloading websites protect the copyrighted work?

Music which is obtained through a legal download will also be subject to DRM technology much in the same way as CD’s. For example Apple has its own DRM which is called FairPlay. This means that files which have been legally downloaded from sites such as iTunes can only be played on Apple products such as MACs, iTunes and iPods.

If I download music illegally will I be likely to be prosecuted?

If you are found to be downloading music illegally you will have breached the copyright in the work. It is usually the case in relation to copyright infringement that damages (often in the form of an account of profits) or an injunction will be sought.

Damages or an account of profits is the likely remedy for a site which provides illegal downloads as they will be the one to have made money out of it. They will also be likely to be hit with an injunction to prevent any future infringement.

The actually downloader of the music, although infringing, only has a small part to play. Despite this there are still penalties which have been brought in through discussions with the Office of Communications (Ofcom) and the biggest Internet Service Providers (ISP’s) in the UK.

As a result if you illegally download music you will be subject to the following penalties:

  • Any internet user suspected of downloading illegal files may be sent a warning letter in relation to their first offence
  • If they are caught again they are likely to face a suspension from internet use
  • For a third offence their internet connection will be cancelled