Joined: 29 Jan 2010
|Posted: Mon Mar 02, 2015 8:29 pm Post subject:
I need to preface these remarks by saying that I don't know of any caselaw or other ruling which could help to clarify this issue, and so what I am about to say is very much a first stab at interpreting the existing statute law.
Music copyright extends to sheet music because a score is the fundamental way in which music is 'fixed' in a permanent form. Therefore any copy made of the sheet music requires the permission of the copyright owner, unless the work is no longer in copyright (for instance because the composer died more than 70 years ago). In the case of sheet music, the copyright will generally be owned by a music publisher who pays royalties to the composer. The law (section 17(2) of the Copyright Designs and Patents Act 1988) says that
and therefore both a pdf and a MIDI file would be copies for the purposes of determining whether there was infringement. Arguably creating a MIDI file might also constitute 'translation' which is also a restricted act controlled by the copyright owner. So from the point of view of your app, if you were to supply copies of sheet music in MIDI format without permission, this would be primary infringement. Even if you sold your app to allow users to make their own MIDI conversions, you could be liable for secondary infringement.
|(2) Copying in relation to a literary, dramatic, musical or artistic work means reproducing the work in any material form.
This includes storing the work in any medium by electronic means.
But, if the client who uses the app also owns a legal copy of the sheet music, I believe that using the app for the purpose of making a MIDI 'copy' for private use would be covered by the new 'format shifting' exception which came into force last Autumn. However it appears that the exception would not apply where you make the conversion to MIDI on behalf of the actual owner of the sheet music (or pdf). The Regulations are not entirely clear on this point and it hasn't so far been tested in court. I am basing my conclusion on the opening words of the new Regulation (with my added emphasis)
Here the word 'individual' is clearly referring to the same person. And even if I am wrong and it is permissible for another person to carry out the copying on behalf of the legal owner, then the exception would not apply if this was done as a commercial service.
|The making of a copy of a work, other than a computer program, by an individual does not infringe copyright in the work provided that the copy—
(a) is a copy of—
(i) the individual’s own copy of the work ...
As you can probably tell, there is some doubt in my mind about the private copying exception and how it might apply in your case. I think you might get some more precise advice from the Music Publishers Association, although clearly what they have to say may well be coloured by the fact that they exist to protect the interests of their members. Alternatively you could try one of the specialist sites that deals with music and the law such as musically, or MusicLawAdvice, or although not really a site for providing individual advice you could try emailing the very knowledgeable Ben Challis at MusicLawUpdates.
Advice or comment provided here is not and does not purport to be legal advice as defined by s.12 of Legal Services Act 2007