Digital music encoding format and any effect on copyright.

Copyright matters affecting music and musicians.
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Digital music encoding format and any effect on copyright.

Post by w0067814 »


I've been reading around copyright law recently (wow, some of that makes for dry reading), but I'm not sure how it could affect my current though process.

Take the following hypothetical situation.

Alice and Bob both own separate digital music collections stored on their computers. The origins of the music may be a mixture of legal digital downloads (ie purchasing MP3 from iTunes / Amazon etc), or via "ripping" the music from CDs that they physically own, using their own computers.

A proportion of Alice and Bob's music overlaps with each other- ie they both own the same albums / tracks. The musical content of the overlapping tracks is identical, however they differ in quality and/or encoding format. ie Alice has 128Kbps MP3 purchased a long time ago, and Bob has 256Kbps Apple Lossless AAC purchased more recently.

If it can be mathematically shown that two tracks are musically identical to each other, differing only in quality or technical encoding format, would there be any copyright infringement if Bob's high quality track was used to "upgrade" Alice's low quality track?

At no point does either party gain music that they do not already have.


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Post by AndyJ »

Hi Tim,
That is certainly an interesting hypothetical. First of all I should say I'm answering from the perspective of UK law so I hope both Alice and Bob live in the UK.
The law certainly doesn't go into that level of detail. Indeed the UK statute law is ill suited to answer many of the issues raised by modern technology, despite a number of attempts, mainly due to European Directives on the general subject, to keep pace. And I know of no case law which begins to address this kind of issue. The nearest I can think of was a case in the USA where thumbnail images of the sort Google Images might serve up were found not to infringe copyright in the original images because their quality was too poor to effectively be a threat to the marketability of the original images (Perfect10 v Google Inc). But that was a decision under the US doctrine of Fair Use which we do not have in the UK (or Europe) and in any case, the circumstances are quite different.
It is also worth mentioning that it is currently not legal in the UK for a person to make copies of their own media (other than software) for the purposes of format shifting for personal use, although it should be legal very soon* (the draft legislation currently awaiting approval by Parliament can be seen here). And in fact the draft Statutory Instrument gives us a clue as to how a court would probably decide on the Alice/Bob issue. The SI will make format shifting legal so long as the copy is made from "the individual’s own copy of the work, or a personal copy of the work made by the individual". From that it would not be lawful for Alice to copy Bob's MP3s or vice versa, despite the underlying works being effectively the same work. However away from the hypothetical legal world, I can't see anything to stop Alice doing this, as it would take a forensic examination to actually discover the difference between her recordings and Bob's, and that's not likely to happen assuming she can prove that she came by her copies legally.

* Afternote. This was correct at the time of writing, but with effect from 8 May 2014 the Department for Busines, Innovation and Skills has announced that the draft regulation has been temporarily withdrawn from the current Parliamentary timetable to allow further discussions between the Department and the Parliamentary Scrutiny Committee.
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
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