CDs and copying

Faced with a barrage of imports of bootleg CDs of music, video and games, industry giants and copyright owners are fighting back by embedding anti-copying technology into CDs they produce.

Please note the Law may have changed since the publication of article.

A  Michael Jackson CD wass reported to be the first CD that won’t play on a PC CD-Rom, meaning that it can’t be converted into MP3. The software on the CD causes an error message to appear when it is inserted into a PC. The software does not prevent the CD being played on a stereo system CD or individual CD player.

Since Napster, the music industry in particular has been very nervous about the ability of computer users to copy tracks without paying a royalty and has been pressing for technology to prevent this happening. Governments too have been reviewing the sometimes arcane copyright laws in light of the explosion of PC and internet use.

In 1998, the US passed the Digital Millennium Copyright Act making it an offence to circumvent anti-copying devices. Recently this has been taken to include a programme written by a Russian programmer called Dimitri Skylarov which circumvented embedded anti-copying software in electronic books. Mr Skylarov was arrested after attending a ‘hackers’ convention in Las Vegas despite the fact that he had not broken copyright law in Russia where he lives and works.

The European Copyright Directive will become law within the next 2 years. The Directive will harmonise authors’ rights across Europe giving author’s and copyright owners wider exclusive rights to authorise or prohibit any form of distribution to the public and including a prohibition on electronic copies being made other than for technical (i.e. caching) purposes. The Directive itself talks about the “need to provide protection against circumvention” of copying. It imposes on member states the obligation to legislate against “the circumvention of any effective technological measures” i.e. to outlaw programmes which would overcome the type of software embedded on Michael Jackson’s new CD.

No-one is suggesting that copyright owners should not be entitled to reward for their efforts, or that pirating CDs is acceptable. What must be considered however is whether it should be the copying and circumvention technologies that are outlawed or merely the individual acts of copying.

The concern voiced by those on the other side to the record industry is that the technology unduly restricts the interests of music lovers and merely maximises industry profits by procuring that the tracks can only be enjoyed by those in physical possession of a particular copy, or enjoyed for a limited number of times, or in a particular region.

The Campaign For Digital Rights (“CDR”) protested on Saturday against the use of this technology and anti-copying legislation in the USA and Europe. CDR protesters leafleted shoppers in seven UK cities, raising awareness about the software and the legislation. Whether the actions of CDR and other organisations with similar interests across Europe and the US will lead to a change in the legislation is questionable, particularly in the current climate where greater regulatory measures are being hailed as the answer to all troubles from ministerial leaks to cyber-terrorism and hacktivism.

The days of a simple copyright statement on a record/tape or CD sleeve are gone. It may also mean the days of the Simon Bates announcement on a video tape extolling viewers to only rent videos with a holographic logo are numbered. The industry has the technology to prevent copying and with the help of legislation, it has every intention of using it.

© This article is copyright Simon Halberstam 2008 and should not be construed as legal advice or opinion in any specific facts or circumstances. the contents are intended for generic information purposes only. You are urged to contact a suitably qualified lawyer for specific advice.