Passing ownership of copied material with original artifact.

'Is it legal', 'can I do this' type questions and discussions.
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Passing ownership of copied material with original artifact.

Post by vanvliet »

Hello there,

I have a question regarding the legality of additionally passing on copies of scanned album artwork, alongside digitally ‘ripped’ copies of the associated audio recording, when selling the copy of the original audio album I currently own.

I have a selection of audio albums on compact disc and wish to sell them via internet based auction websites.

Wishing to preserve the original artifacts, I made digital copies of all audio files, scanned all album artwork and stored them on a hard drive, which I understand is legally permissible as long as I own the originals. Obviously, if I then sell the originals, I’m am legally obliged to destroy all copied images and audio files, but could I pass these copied items along with the original artifact to the new owner beforehand?

I put A LOT of work into preserving my original copies and it seems a shame that I should now have to destroy it all, when it could be passed on. If permitted, I plan to transfer the copied items to a digital storage medium and send them along with the original artifact.

Any information on this would be greatly appreciated.
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Re: Passing ownership of copied material with original artifact.

Post by AndyJ »

Hi vanvliet,

The first thing to say is that if you are based in the UK then it is not legal to copy audio files even if it is for the purposes of backing up or format-shifting the legally-owned disk. The same applies to the artwork. The probable reason for your confusion is that in October 2014 secondary legislation was brought into force which did make this sort of activity legal. You can find the original SI here. However following a judicial review in 2015, the High Court quashed the secondary legislation on the basis that it contravened EU law since the UK policy did not provide for compensation to the rightsholders whose works would be affected by this exception. In theory this meant that the government could have amended the legislation to correct this error, but instead they chose to withdraw the Statutory Instrument and consult on the way ahead. To date no consultation has been commenced.

However, even if the Statutory Instrument was still in force, providing the backup copy ('the personal copy') to someone else would be an infringement and the transferred personal copy would become an infringing copy. See the amendment in paragraph 3 of SI 2361/2014 which introduced sub-sections (6) and (7) to the new section 28B of the Copyright Designs and Patents Act 1988
(6) Copyright in a work is infringed if an individual transfers a personal copy of the work to another person (otherwise than on a private and temporary basis), except where the transfer is authorised by the copyright owner.

(7) If copyright is infringed as set out in subsection (6), a personal copy which has been transferred is for all purposes subsequently treated as an infringing copy.
So in other words both you and the person who had received your personal copy would be liable for infringement.

There remains the tricky legal question about personal copies which were made between the SI coming into force on 1 October 2014 and the High Court ruling on 19 June 2015 that the SI was no longer legal. No guidance has been issued on that subject.

Incidentally, prior to the enactment of the SI, the music industry had stated that it acknowledged that the practice of home-copying for personal use went on and that it would not seek to pursue anyone who did this, prefering to concentrate on those who were making illegal copies for sale. It is not clear whether that undertaking still stands after the High Court decision.
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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