Format Shifting In Australia: What Can You Legally Do With 'Your' Content?

In the UK, it's just become illegal to rip CDs you own, but that doesn't mean the same law applies here. Still, it's worthwhile refreshing what's legal under Australian copyright law and what isn't.

Copyright picture from Shutterstock

It's a terribly frequent Ask Lifehacker question, with lots of advice that either relies on overseas law -- especially that from the US, but I've seen European laws cited as being applicable for Australians in some corners of the web -- or straight up misunderstanding about what's legal. Even within content you might think you "own", there's a difference between what you might think of as "right" and what's "legal".

Books

Australian copyright law does contain provisions making it entirely legal for you to "format shift" -- that's the process of making a digital copy, although it could also apply to shifting to some other kinds of formats if viable -- books, newspapers, periodicals and even photos that you fully own.

That being said, you've got to do the actual format shifting yourself, and you're only entitled to make a single copy for private use. Which means that while it would undoubtedly be easier, downloading an ePub or Mobi copy of A Game Of Thrones when you own the hardcover version would be a contravention of Australian copyright law, but it would be legal for you to sit down with a scanner and create your own painstaking copy.

You're only entitled to that single copy for as long as you own the original book, however; it's a big legal no-no to make a format shifted copy of any content and then sell or even give away the original copy. This is true for any format shifted content.

Audio

Own a CD of Taylor Swift's "1989"? You're entitled, under Australian law, to make a copy for domestic use, such as in your car or ripped onto your smartphone to avoid streaming data fees. You can even share it with members of your household and family, although you're not entitled to take that copy any wider than that. As with books, you've got to do the format shifting yourself, however; just because you own a physical CD you're not entitled to grab a torrent and "make" a copy that way.

The same rule when it comes to ripping music isn't true for any kind of digital file purchased from, say, iTunes, Google Play or any other digital storefront. There you're bound by whatever the terms and conditions of the service were when you acquired the material. iTunes, for example, allows you to create a CD of purchased iTunes tracks, so that would be legal, but, strictly speaking, then ripping MP3s from that CD wouldn't be.

If you're a subscriber to a streaming service such as Spotify, Apple Music or Rdio, you're likewise bound by the exact T&Cs of the service when you signed up, which by and large don't allow for any kind of format shifting at all.

Streaming might feel like "radio" -- and Apple's Beats One further muddies those waters -- but if you're talking about actual Australian broadcast radio, you actually do have some format shifting rights.

The same provisions that make it legal to timeshift video content from TV channels apply to radio broadcasts as well, so if you can capture audio from a radio set for listening to at a later time, you're entitled to do so with no copyright broken -- although there are caveats to that, which I'll get to below.

Video

Video is the classic area where people would like to be able to take their DVDs or Blu-Ray and rip them for easy watching on tablets and smartphones. Under current Australian copyright law, however, this is rather explicitly a no-no.

What you are allowed to do is format shift video from analogue sources into a digital format, again as long as you own a legitimate copy and keep that copy. So if you still have a VHS copy of Demolition Man you can bring it into the 21st century by making a digital copy of it, scratchy VHS effects and all. Own a DVD or Blu-Ray copy, and you can't except in those cases where it's been sold with a digital copy as part of the package, whether that's an iTunes/Google Play style copy, or Ultraviolet source.

What you're also allowed to do is time shift broadcast video for viewing at a later stage, which is what video recorders used to do, and what you'd probably use a PVR for within that legal framework right now. You're only entitled to keep that single copy for a single viewing instance for a "reasonable" time, although there's no specification for what "reasonable" is in this case. Watching the Grand Final the week after it was on is probably fine, but not so much the Grand Final from 1982 if you'd happened to have taped it.

Software

Software is another area where there's a significant quantity of desire to format shift, but some significant legal issues to contend with.

You are entitled under current Australian copyright law to make a backup copy of a computer program to use in the case of loss or accidental destruction of the original copy, but not, as with other format shifting endeavours, if you choose to sell or give away the original software.

However, you're only entitled to make a backup of the software as it pertains to the application itself, which means that other elements, such as graphics or sound elements which retain their own copyright status may not be copied as part of a backup.

So what does that mean in practical terms? If you've got a CD (or, thinking even more old school, a floppy or a tape) with an application program such as a word processor on it, you're essentially covered to make a single non-infringing copy for the purposes of backup should your primary copy be "lost, destroyed or rendered unusable".

But if you're talking about a computer game, you're rather explicitly not allowed to make a backup or format shifted copy without explicit permission from the copyright holder. For some games, especially for retro systems, that could be difficult if not impossible to even sort out given the number of high profile studios which have collapsed, been bought out multiple times or simply vanished into the mists of time. Still, you're legally obliged to seek that permission out.

One side effect of that is that as the law is written, console video game emulators as software may be legal to run in Australia, but running emulated game images on that software -- which is to say, actually using an emulator in the way that people use emulators -- almost certainly isn't.

The Copyright Protection Trap

Image: Kenny Louie While you're legally allowed to format shift content that you own a legitimate copy of, you're not entitled to circumvent any copyright protection measures -- no matter how flimsy or poorly conceived -- to do so.

So to go back to our VHS example, if your copy of Demolition Man was encoded with Macrovision copy protection -- a relatively trivial task to circumvent -- then the creation of a copy, even though you could, would be an infringement.

What Are The Odds Of Getting Busted?

Image: Jumilla The purpose of this guide is to look around the legal implications of copyright infringement as it stands. Technically speaking, every instance of copyright infringement from an individual could bring penalties that could run to tens of thousands of dollars, although that's sitting within the maximum limits for an individual for a proven infringement. It's no hard and fast rule, but it feels unlikely that in a single personal use instance of copyright infringement that a court would rule quite that heavily.

There's the rather logical position to take that at an individual level, it's not the worst bit of ethical malfeasance to make a copy of a work that you own an existing copy of, whether that's for convenience -- it's easier to stream a movie from a server than change a DVD -- or for the security of backup, because physical media, like anything, is subject to entropy over time.

However, as it stands, Australian copyright law doesn't think that way, or at least doesn't appear to.

While there are instances of individuals being sued for making wholesale infringing copies -- Queenslader James Burt famously settled with Nintendo for $1.5 million for making copies of New Super Mario Bros available online -- there hasn't been a lot of precedent set when it comes to individuals making personal format shifted copies. As with all of these cases, it would come down to the copyright holder's proof of "damages", and what those damages (plus likely legal costs) might turn out to be.

Lifehacker's weekly Streaming column looks at how technology is keeping us entertained.


Comments

    Wow. Putting it in one place like that in context with usage really shows just how dodgy and spiritually inconsistent these laws are.

    It'd be great if politicians would empower the judiciary to tell the industry 'how it's going to be', and overhaul the laws to something consistent.

    Unfortunately, thanks to the power of lobbying groups and politicians with their heads buried deep up content-provider industry's collective asshole, if something like this DOES happen, it'll be to cement in some uniformity to consumer-fucking standards.

      Our copyright laws are in dire need of an overhaul. The worry is if they try to do it now, the TPP and other treaty pressure from the United States will probably influence the result and we'll end up with local copies of some of their messed up laws like DMCA.

    you’re only entitled to make a backup of the software as it pertains to the application itself, which means that other elements, such as graphics or sound elements which retain their own copyright status may not be copied

    Does this mean that I'm not allowed to record myself playing a video game and upload that footage to youtube?

      You're not making a copy of the game, you are making a performance.
      That's like saying whatever company made the instruments and microphones that the Beatles used will own all their music.

        Does that mean that I can record myself watching a movie, that's OK as well because that's 'performance'? Like all those people who Periscoped the Mayweather fight?

      There's a difference to making a copy of a game and making a video of yourself playing a game.

        I'm not making a copy of a game, I'm making a copy of the graphics and sound elements, as outlined in the article. I just wanted more clarification from the author. Isn't this how Nintendo was issuing take down notices to streamers?

          Part of why Nintendo's takedowns are bullshit, and why I would love to see one actually tested in court and thrown out, setting a precedent to prevent them from pulling more bullshit.

            Any game developer is within their rights to takedown infringing work, which a video featuring content from a video game most certainly is.

              Nope, nope, and nope. They are not, actually, within their rights. They are within their rights to file a complaint against the host and file a suit for the infringer to face a copyright case in the courts, where a judge will determine if the alleged infringement is in violation of copyright law.

              'Featuring content' is not an excuse for a take-down on its own, because there are many valid reasons protected under copyright law (in the US) to feature someone else's work. Whether it is for the purpose of parody, commentary/education, or if the the work is 'sufficiently transformed'. Such as an interactive video game might be transformed by being turned into non-interactive video of a person playing it and recording their commentary over the top. Transformative works are protected by copyright, but we've yet to see anyone have the stones to bring this to the courts to have it tried and proven... because that could open the floodgates to a situation they don't want.

              Instead, corporate interests lobby other corporate interests (like YouTube) to pull down the content themselves, without invoking the law. YouTube bypasses the protections copyright law affords by making it an issue of, "You can do what you want, but not in my house."

              By making this arrangement, YouTube and Nintendo are full of horse shit with no respect for the spirit of copyright law.

              Last edited 21/07/15 4:37 pm

                Yes, a game developer is within its rights to take down infringing works, such as unauthorised reproductions of parts or whole video games. That most choose not to pursue their rights doesn't change this. Infringing work can be infringing without the rights holder taking action. Like I'm cool with you crossing my garden to get home. But for some reason you always call the cops and have me arrested for trespassing when I cross your garden - you're Nintendo, I'm everybody else!

                Simply uploading footage of you playing a game as it was intended to be played is a reproduction of that work so a rights holder can deem it to infringe on their rights.

                Gameplay footage doesn't constitute a performance, in which case the rights holder is still due some compensation. It isn't fair use, because you're simply reproducing the game as is with no commentary, explanation or parody. And it most certainly does not constitute a transformative work, because the purpose of the video is the same as the game, "To make money by providing entertainment on a screen."

                Now, if you recorded a series of gameplay footage and then edited it and added dialogue to tell a story that wasn't told in the game, you could call it a transformative work. Similarly technical videos like speed runs, mod demonstrations and such would fall under fair use because they constitute commentary on the game itself.

                But if your gameplay is just you playing the game without any critique or commentary specifically about the game then you are not covered by fair or transformative use. One would expect a player to be yelling and screaming and enjoying themselves while playing the game, and including a recording of this with the protected work doesn't magically cancel out copyright as you seem to think.

                Essentially you're saying that it's okay for me to take a song I like and make a version of it which features me singing the lyrics alongside the original song. Sorry bro, that's infringement.

                  Sorry bro, that's not infringement.
                  'Sufficiently transformative' relates to the purpose.
                  There's a big difference between playing a game and watching it.
                  Go read up on how you're wrong. Plenty of cited links to explore your wrongness. https://en.wikipedia.org/wiki/Transformativeness

                Thanks for the Wikipedia link. It supports my argument not yours. Good to see you actually read it.

                  Are you kidding me? The examples you cited are damn near identical to the ones that actually succeeded as transformative works protected under copyright law.
                  ...[If] the secondary use adds value to the original—if the quoted matter is used as raw material, transformed in the creation of new information, new aesthetics, new insights and understandings—this is the very type of activity that the fair use doctrine intends to protect for the enrichment of society.

                  So, Pewdiepie with his millions of followers are viewing him, not just any randoms who play the same gameplay footage because they are viewing his reactions to the game (superimposed on the screen more often than not), not deriving their enjoyment from the game itself. As is shown by the consistency of his subscriber count compared to other youtubers playing the same game. It's the personality that is consistent, not the game.

                  I mean, this is really basic stuff. Bloody hell, this is pointless if you don't actually know how to read...

                How does a gameplay video add value to the original when it's simply a reproduction of the original?

                How does a gameplay video create new information when it presents the information that was already contained within the game?

                How does a gameplay video add new aesthetics when it's just an identical reproduction of the game's aesthetic?

                The answer to all of those questions is: It doesn't.

                Maybe if you were talking about a video in which a narrator narrates lore from the game and features edited game footage, then you would be talking about a transformative work, because there's a lot of ways

                As a result, studios often turn a blind eye to what may effectively amount to copyright infringement, in the knowledge that allowing a little copyright infringement to take place may actually help them sell more units of their game and that enforcing their rights in a draconian manner may only serve to alienate their consumer base.
                http://www.develop-online.net/analysis/uploading-gameplay-content-to-youtube-the-law-versus-the-commercial-reality/0187828

                Again, it's up to a rights holder to decide what action to take, if any, against an infringing work. The fact that the overwhelming majority of game developers don't act upon infringing gameplay videos doesn't change the reality of the copyright protections therein.

                I suggest reading the article to familiarise yourself with the kinds of copyright protections video games have:
                For example, the game’s artwork, GUI, textures and character models may be protected as artistic works; the text in the game’s menus, loading screens and subtitles may be protected as literary works; any cutscenes in the game may be protected as films or dramatic works; and various parts of the soundtrack may be protected as musical works or sound recordings.

                  You seem to be labouring under the misconception that I'm advocating in favour of letting people just post videos of Nintendo's games being played, without any of the related transformative properties. That's not what I said at any point.

                  If you're familiar with the program Nintendo has been implementing, you would understand that Nintendo are aiming for ALL related instances of their work - even transformed - to be claimed as their property, which is not by any reasonable person's reading of protected transformation, a fair action.

                  But rather than letting the courts prove this by seeing a take-down notice to its conclusion, Nintendo is colluding with YouTube to make sure these cases don't make it to court. Per your allusions to 'rights'; rights-holders have the right to make a complaint and have the video taken down without investigation, which can then be appealed and investigated and if no resolution is reached, taken before a judge. This doesn't happen. Whenever a YouTuber has stood their ground and their work is sufficiently transformative, the owner has backed down and the video re-uploaded (after MONTHS of delays and 'investigation', negating topical relevance), rather than let a court ever, ever, ever set a precedent, or YouTube has stepped in and said, "Our house, our rules." Because YouTube is complicit. YouTube is under no obligations to host content that they don't want to. It's their house, if you don't like their rules, you can leave and try to peddle your non-infringing wares somewhere else.

                  This is what I object to. These cases should be taken to their conclusions, courts should make rulings that set clear precedents as to how modern video use of games (interactivity arguments aside) relates to their protections under copyright law as transformative works. What's happening now, is Nintendo is saying, "We'll let all that slide, as long as you give us the lion's share of the profits." Which is despicable, because it is my contention that a large number of the videos Nintendo is claiming that share on, would be fully, wholly protected by Copyright law, and their TRUE entitlement is nothing.

                Just replying to some of your back-and-forth above (because comment depth limits).

                To be fair, YouTube has no choice. The DMCA requires that online service providers take down material immediately upon receiving a properly formatted claim, regardless of the legitimacy of the claim. If they don't, they lose protection under safe harbour and become liable for all copyright infringements they host across the whole service, not just the one they didn't act on. That would be disastrous for YouTube, there's always thousands of videos that could get them sued at any given time.

                The law itself is the real enemy here in my opinion, it should never have been created requiring takedowns without legal process in the first place. The number of false claims over the years should make it clear the system is hugely open to abuse. Sad thing is it was signed in by a Democrat president, so there's not even the excuse that it was corporate-loving Republicans that did it.

                  The initial DMCA take-down requires YouTube to comply, definitely. The problem is that once an uploader disputes that, it has to be investigated manually, and then YouTube/Nintendo has to either withdraw the complaint (which happens a LOT), or stick to their guns and fight it in court, which is where we would actually get to see a ground-breaking precedent get set, which would shape YouTube's policy.

                  What's happening is a third option: YouTube decides that they just don't want to host the video, not due to copyright law, but their own internal policy, which has to be agreed to, to use their service.

                  YouTube pretty obviously doesn't want to see an actual legal decision as much as Nintendo doesn't, so they're making their own deal about how to handle copyright claims, and letting corporations decide the 'effective' implementation of copyright, rather than the law deciding it.

                  Last edited 23/07/15 8:46 am

                  @transientmind I'm not too familiar with the later portion of YouTube's process, I've never had a video taken down luckily. The law itself I believe requires that the service provider notify the original claimant of a counter-claim and then wait two weeks to see if they'll initiate legal action. If they don't, the material gets restored. If legal action IS started the material is supposed to stay down until it's resolved.

                  I take it that doesn't happen with YouTube's process? I admit I sympathise to some degree with YouTube wanting to do things as defensively as possible, their whole service rides on a knife-edge that would destroy them if they lost safe harbour.

                  This is why we need a suit to be fought and decided upon, not settled out of court.

                  The end-result is Nintendo's exploitative program that takes the bulk of profits from works that they quite possibly have no legal entitlement to AT ALL.

                  The law itself I believe requires that the service provider notify the original claimant of a counter-claim and then wait two weeks to see if they'll initiate legal action. If they don't, the material gets restored. If legal action IS started the material is supposed to stay down until it's resolved.
                  It's never two weeks, but the norm is the restoration. Some of the bigger YouTubers have long-standing complaints about this being used as a bullying tactic.

                  Topical relevance is important to the commercial value of a video, and is time-sensitive.

                  Imagine if I could lodge consequence-free claims against milk being sold in stores and they had to take it off the shelves for a month while I played legal shenanigans to draw out the response time, before dropping my complaint on appeal, and letting the milk be put back on the shelves.

                  A legally-undefined 'terms of use' option is where YouTube themselves deem that after a number of these 'strikes' (even if proven to be false complaints), penalties and restrictions are placed on the videos that can be uploaded, or the revenue that can be earned. In many cases, this effectively bars some formats of presentation from going up at all.

                  And the worst thing is, the 'third option' is Nintendo's partnership program, where they agree not to lodge claims against uploaders, incurring those penalties and delays, as long as the uploaders hand over something absurd like [Edit: 60% for one-offs, 70% for channels] of the profit to Nintendo.

                  It's extortionate.
                  "Noice channel you got heyah. It'd be a real shame if someone were to lodge a bunch of claims against it, ruining your status and revoking your ad revenue account. You could really do with payin' for some protection against dat."

                  YouTube is facilitating this. It's disgusting.

                  Last edited 23/07/15 9:13 am

                Dude I understand how copyright works. Your ability to read clearly isn't helping your understanding though. The fact that rights holders decide not to take action against people like PewDiePie doesn't mean that the original works suddenly lose all of their copyright protections.

                That's why when Nintendo requests for gameplay videos which infringe upon their rights to be taken down, they get taken down

                You're absolutely right! It's simple. I'm not sure what it says about you that you can't understand this.

          You're not really making a copy of them. You haven't made a copy of the actual files, you've taken a video of them. Pretty much the same as taking a video of anything else. If you shot a video of a car driving on a road, you haven't made a copy of that car.

            The files aren't protected under copyright law. The work as a whole is. And just because you don't copy the "dialogue.wav" file you're still recording and reproducing its contents by recording the audio from "dialogue.wav".

          A lot of Nintendo's take downs were by videos that were monetized, so uploaders could turn a profit from "content they don't own."

          It's a HUGE grey area.

      Harsh as it may sound, you can't legally show video game footage (or audio) without permission from the rights holder(s). Australian law has no provision for fair use. It doesn't matter if you're making money from the video or not, though making money draws a lot more attention. Fortunately a lot of companies are smart enough to know free publicity when they see it, and/or have already written out official permission for people to make videos.

      That said, most companies don't chase down Let's Plays and the like so the chance of anyone caring is pretty slim. Nintendo and a handful of others have been recent high-profile exceptions.

        Thank you for expanding and clarifying the article.

          Just to clarify since on rereading it my post seems a little restrictive. We do have a thing called fair dealing. Fair dealing is what lets portions of copyrighted material be used for critical review, research, news reporting and satire. The conditions are qualitative, which means if it were challenged it would have to go in front of a judge to see if your use met the conditions.

          Fair dealing is much more limited than fair use. There are ongoing campaigns to try to get fair use introduced into our copyright law but so far they haven't succeeded.

    How does a law like this even get passed? Every CD I buy has it's own "car copy" and place on my iPod. What a crock of s**t.

      Uhh, the article says pretty clearly that you can buy a CD then rip it yourself for use on stuff like iPods. You just need to do it yourself and not download a torrent.

        Um, the article also says that it's illegal to circumvent any copyright protection scheme in order to do so, using Macrovision as an example.

        The Red Book Audio CD format has a provision for a Serial Copy Management System (SCMS) flag that is used as a simple DRM. Most commercial recordings have this set to "11", which denotes that copies are prohibited from being made. Therefore, using software that ignores this instruction is technically circumventing a copy protection method and therefore illegal.

    Are breaking T&C for spotify and apple music actually illegal? I don't think so.

      It's not criminal, but T&C and EULA agreements are contracts, same as any other. Breaching them may lead to civil action.

        Has that ever happened before? Even stuff like FB has T&C.

          As far as I know there's no precedent in Australia, but it's been tested in the US and UK. In the US there's a stipulation that it's only binding if you have to explicitly accept in some way (eg. clicking 'I accept') but we'd have to see the ruling in an Australian case to see if the same would apply here.

          They can't demand anything that's against your consumer rights, of course. You don't have to abide by terms that contradict local law. That said, in the US that only invalidates the portion of the terms with the unconscionable requirement, the rest would still apply. It would probably be similar here.

            I'd be really interested to read up some more on the US or UK case - any sources you have handy?

              ProCD v Zeidenberg is the most famous US case, there's a summary here.

              I don't have any UK cases on hand, I haven't kept up with this area in the UK. I'll see if I can find one when I get some time after work, but Carlill v Carbolic Smoke Ball Co is an old UK case that established precedent that a contract offer can be accepted implicitly without the need to notify the offerer, which is basically the mechanism by which EULAs work. Lord Justice Bowen noted that notification of acceptance is for the benefit of the offerer, and they may dispense with the notice if they want to. If the offerer "expressly or impliedly intimates in his offer that it will be sufficient to act on the proposal without communicating acceptance of it to himself, performance of the condition is a sufficient acceptance without notification".

              Turns out the case I was thinking of in the UK was actually a Scottish case, so its precedence only affects Scotland. In Beta Computers v Adobe Systems, the judge ruled that had the wrapping been opened and the software within used, the terms of the licence would have been incorporated into the contract.

              Since that only applies to Scotland, I'm actually not sure now if EULAs have been tested in the UK.

                I have a strong suspicion that there are powerful groups heavily invested in making sure EULAs and some more common copyright infringements don't get tested in court.

    If you’ve got a CD (or, thinking even more old school, a floppy or a tape) with an application program such as a word processor on it, you’re essentially covered to make a single non-infringing copy for the purposes of backup should your primary copy be “lost, destroyed or rendered unusable”.

    Hold on, back in the day I remember the ol' Microsoft manuals actually instructed those who purchased their software to make copies and then keep the originals in a safe dry place and then use the backups in their place.

    Does this count as permission or has Microsoft been setting a messy precedent in the 90s and early 00s?

      If it's explicitly permitted to make copies in the licence, you can do it. The restrictions in copyright law are descriptions of default exclusive rights the copyright holder has, but the rights holder can grant those rights to anyone else as they like.

    Nope, playing a game is interactive, and the act of playing the game is a performance. Youtubers can actually get in trouble for using non-interactive cut scenes, since they don't actually interact with them so they can fall under the same banner as movies and TV etc. Crazy huh.
    The people who Periscoped the fight were most likely breaking rules as I'm sure there would be broadcast rights around such a thing, thus limiting the ability to stream or record the fight illegal unless you pay for the rights to do so.

    I'm sure everyone who has ripped their entire movie or TV collection is just busting to delete it all, and dig up the old DVD or BD player that hasn't been used in years, and insert physical media for playback. Convenience? Who needs it.

    Seriously, what a joke. Nobody is going to change their habits to appease silly lawmakers.

    Just get a VPN and torrent the stuff.

    The laws are put in place to appease dying business models from dinosaur corporations. It will take about 40 years from now before these companies realise you can't make money from the old world distribution model anymore, and things have to change.

    Sell it DRM free in the format people want to play on any device they want - that's what will make money because suddenly, the legal way is easier and more convenient than piracy.

      jjcoolaus, Could you please recommend a decent VPN to use ? Happy to pay each month etc, just a wee stuck on which one is actually the most reliable / decent.

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