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Help - have I infringed copyright?

Posted: Sat Jun 30, 2012 12:45 pm
by Bdwml123
I was recently seeing a client re hypnotherapy for IBS. I had a cd that I had burned an mp3 onto for my own personal use. I too suffer from IBS. I lent he client the cd. Later I received an email asking me not to copy and give copies to my clientS. Also asking for a resolution.
I apologized if I had inadvertently infringed copyright and offered to pay for anything he had missed as he said he had to send a copy of the original CD to the client. T
I have not heard anything and I am worried - what should / could happen next? Thanks....worried

Posted: Sat Jun 30, 2012 4:09 pm
by AndyJ
Hi Bryan,
By burning a copy of the CD onto your MP3 player, you technically made an infringing copy of the original. I say technically because if this had been a music cd, the music industry umbrella organisation known as BPI has issued a policy statement to the effect that neither they nor their members will take action against private individuals who transfer pre-recorded music between formats (known as format shifting). It has been recommended to the Government that in due course the law should be changed to recognise this practice as legal for private and domestic purposes. However I assume that this particular CD was not a music CD and thus was not covered by that agreement.
Lending your copy of the CD to someone is not copyright infringement, because it does not result in a new copy. It may possibly contravene some sort of end-user licence, which says something to the effect that "this CD is sold subject to the condition that it shall not, by way of trade or otherwise, be lent, re-sold, hired-out, or otherwise circulated without the publisher's permission .. ". Indeed it may be that in its original packaging, breaking the seal indicated that you agreed to these terms, as often happens with software. However if there was a license of that type, that is a separate issue from copyright, and it would be up to the complainant to prove that you lent the CD on a trade basis, in order for you to have breached the terms of the licence. It may be that a court would uphold a defence that this was an unfair condition, since it was not brought to your attention at the time you bought the CD.
As this would appear to be just a trivial case of copying for the purposes of format shifting, I do not see any court entertaining a complaint. At worst it may be that the publisher of the CD might ask for you to pay for the second copy (ie the price of another CD) that you made when you put the contents on your MP3 player. The lending of the CD to your client is not an infringing act.

Posted: Sat Jun 30, 2012 4:51 pm
by Bdwml123
Hi Sorry it was an mp3 I purchased and then transferred to CD for my personal use. I then lent the client (no charge made) my copy on CD for her to listen to with the intention of me or her purchasing a further copy for her from the third party. However, there was an item missing and she contacted me for the listening guide. I did not reply in time. She then contacted the third party (who's details were on the CD I had lent). The third party then contacted me via email to inform me I had broken an agreement and copyright and that he was surprised at my behavioural and that he would complain about thus to my professional body and finally that he thought might have done this before so he as taking advice.
I gave never done anything like this before - I'm scared of going over 30 on a 30 area. I found the letter rather threatening for something so trivial (in my eyes). I did not make a profit in what I did. He sent a full set of dvd's with IBS hypnosis to the client. I agreed to pay the cost of this and to pay any expenses in found so.
Eventually later today his secretary called and suggested that he would discuss this in person with me and that he would email Monday to arrange a 7 pm appointment next Tuesday. I originally suggested meeting to resolve the matter in good faith.
I am now concerned that he may attemp to record our conversation to prove something or make further issue. Of course that could be me being paranoid. But I was anxiouse about what might happen legally. Everyone I have spoken to has said this is such a minor case that I have little to worry about but I still worry (just me). J have not slept for the last 48 hrs and not eaten (which is very unusual)!

Posted: Sat Jun 30, 2012 6:28 pm
by AndyJ
Hi Bryan,
Thanks for the clarification. However, I still believe the format shift from MP3 to CD is still a relatively trivial matter, assuming that you did this for your own personal convenience, and not because you intended to give it to your client. In other words, if the making of the CD and the act of lending were two separate and unconnected acts, then the copying per se remains trivial.
However as it was the infringing copy (on CD) which you lent rather than the original, then that does introduce a second infringing act, namely issuing a copy of an infringing work to the public contrary to section 18:
18 Infringement by issue of copies to the public.
(1) The issue to the public of copies of the work is an act restricted by the copyright in every description of copyright work.
(2) References in this Part to the issue to the public of copies of a work are to—
  • (a) the act of putting into circulation in the EEA copies not previously put into circulation in the EEA by or with the consent of the copyright owner, or
    (b) the act of putting into circulation outside the EEA copies not previously put into circulation in the EEA or elsewhere.
(3) References in this Part to the issue to the public of copies of a work do not include—
  • (a) any subsequent distribution, sale, hiring or loan of copies previously put into circulation (but see section 18A: infringement by rental or lending), or
    (b) any subsequent importation of such copies into the United Kingdom or another EEA state,
    except so far as paragraph (a) of subsection (2) applies to putting into circulation in the EEA copies previously put into circulation outside the EEA.
(4) References in this Part to the issue of copies of a work include the issue of the original.
(The reference to Section 18A concerning rental or lending does not apply to your act of lending, as it refers to lending through 'an establishment which is accessible to the public' - in other words, a public library.)
Obviously in your case it was 'copy' not 'copies', but unfortunately your client still constitutes 'the public' in this instance.
So that's what the law says, and once again I do not think this would or should ever come to court. You have clearly indicated to the supplier that you were in the wrong, albeit perhaps unknowingly, and you are willing to make amends, so I'm sure a satisfactory settlement can be arranged once you have convinced him that this was a one-off event.
As for his stated intention to contact your professional body and the threatening tone of his letter, these could count in your favour. Much will depend on the actual words used, both to you and to your professional body, but unfounded accusations which damage your professional reputation could amount to defamation, for which you could take action. I suggest that you should take a witness with you to the meeting and ask them to take notes on what is said. I'm sure the supplier will have someone he can call on to do the same for him. The discussion should be discontinued if it becomes heated, or if additional accusations are made. However, let's hope that you can sort things out in a reasonable manner without it coming to that.
Should you both be unable to come to a satisfactory settlement, suggest taking the matter to Alternative Dispute Resolution, ie mediation or arbitration*. You can get details about this from your local County Court or CAB.
So whilst it is a worrying situation for you to be in, it is not a deeply serious one, and so long as you can both remain calm and amicable there is no reason why this cannot be sorted out simply. Make sure that, once you have agreed a settlement, this is confirmed in writing and if the supplier has already contacted your professional body, make sure you provide them with a copy of the settlement document to demonstrate that the matter is at an end.

* If you are not familiar with ADR, mediation means discussions between the parties aimed at finding a solution are mediated by an independent person, but ultimately the parties find the solution theselves, whereas arbitration is done at arms-length, with both parties putting forward their positions to an arbitrator who then negotiates a settlement based on his judgement of the relative positions of the parties. In both systems, parties have to agree to use ADR for the system to work.