When Is It OK To 'Copy' Content?

Image: Getty Images

Sharing music, images and movies - using a PVR to record TV shows, creating your own Hitler parodies from Downfall and using photos from websites - is something many of people do every day. But are they legal activities? It's possible that you're breaking copyright laws, either intentionally or inadvertently every day. Here's a look at copyright law and what you can do to protect yourself.

Australian Copyright law is so complex that lawyers, lawmakers and experts can make careers arguing over how it's interpreted and applied. But if you're caught out, you can't use ignorance as an excuse as the law doesn't (officially) offer leniency for misunderstanding or lack of knowledge. How can you comply with convoluted copyright laws when you can't realistically understand them all?

We've all seen the messages warning us against pirating when we pop a movie into a DVD player or visit the cinema. And we've seen some recent cases where content distributors have taken action against websites that facilitate access to pirated material.

So, despite the copyright messages and warnings, it's still enough of a problem that the Village Roadshow CEO penned a letter that bordered on hysterical suggesting Australia could end up "as bleak as a remote Bejing suburb" as a result of content piracy.

Of course, if we had more warnings like this one, perhaps things wouldn't be as dire.

Format shifting is OK - sometimes

It's legal for you to create backups, for personal use, of some types of media.

If you own a CD, you can rip a copy of it for personal use but you have to retain the original CD and you can't distribute the copy.

For books, it's illegal to download a "pirated" version of a physical book you own but it's legal for you to scan every page and make your own backup copy for personal use.

With movies, it is illegal to rip DVDs or Blu-ray to make a copy for backup purposes. But if you purchased a VHS movie, you can format shift that. The difference is that the disc-bound movies are encrypted whereas the tape isn't.

Here's what the Australian Law Reform Commission says about DVD and Blu-ray ripping:

The format shifting exception for films only applies to copies made from films in analog form. It does not allow digital-to-digital copying. This means the exception does not apply to copies made for example, from DVDs and Blu-Ray discs and digital copies downloaded from the internet. One reason given for this limitation is that ‘unrestricted digital-to-digital copying could allow consumers to reproduce the full picture quality and features provided in commercially produced digital film content’.

Time-Shifting

If you choose to record something from TV for later viewing, what the legal-eagles call "time-shifting", then you can do that and watch the recording in a reasonable time. Of course, reasonable is a super-fuzzy term. Let's say you recorded the FIFA World Cup final the other night, you could watch that next week but keeping it in your personal library to watch in a few year's time probably doesn't fit the definition of "reasonable".

But Sharing Is Caring

I often see friends share a favourite page from a book or a recipe by taking a picture of the page and popping it onto Facebook or Instagram.

This falls into the murky waters of "fair dealing" (the US calls this "fair use").

A recent article looked at this and said that under Australian law, you can use copyrighted material in the following situations.

  • research or study
  • criticism or review
  • parody or satire
  • reporting the news
  • provision of legal advice

The advice given in that article says you should consider whether the copying is necessary, that you shouldn't copy any ore than what's needed and you ought not use the copy to compete with the original. So, it's unlikely sharing a page from a book is going to get you into trouble if you're basically using it to provide a mini review or critique.

Enforcement Regimes And Rules Vary Across The Word

There's a great example in article on The Conversation I referred to earlier where a mother used a short clip of the Prince song "Let's Go Crazy" with a video of her toddler.

YouTube removed the clip, citing copyright violation, but was forced to put the clip back as the mother was protected under US fair use law. However, if she'd been Australian, she would to have had the same rights as our fair dealing laws are different.

So, it can be tricky to even work out what's allowed because the rules are different depending on where you are.

The Challenge

Rights holders can be fickle about what they choose to have removed and what to leave alone. So it's difficult to rely on the law for guidance. The result is that we - the average users and consumers of the internet - are unsure of how to proceed when dealing with copyrighted works and either have to assume we have no rights or make our best guess and hope it doesn't lead to legal consequences.

Image: Getty Images

Some actions, like the creation of a "mix tape" have been tolerated in the past as the effort required to create "playlists" of songs we liked and share them with others was very high. Now that we have digital music files, we can throw together a mix "tape" in a matter of seconds. While the action of making a mix tape violated copyright law it was tolerated because it required a lot of effort, had a inefficient method of mass distribution, and was often an effective marketing tool. Digital files made mass distribution both efficient and easy, which led to intolerance on behalf of the Recording Industry Association of America (RIAA) and several ineffective lawsuits.

Now that we have streaming music services like Spotify, Apple Music and others, the music industry has more or less caught up with what consumers want. We have relatively low-cost access to a massive library of music and we can create our own playlist as long as we pay our monthly fee.

Downloading TV Shows and Movies remains a problem but the situation is changing. It is clearly illegal to download unlicensed TV shows and movies from file sharing services. While some are stealing television and film content because they do not want to pay, many are employing piracy because the barrier to entry is unrealistic for most consumers.

But that is changing. Stan, Netflix and iTunes all make video content easily available on demand for monthly or short-term rental fees. But content deals that lock certain content to specific delivery channels - such as shows that are only available to terrestrial broadcasters or exclusively in theatres for long periods - provide an incentive for some people to access content from streaming sites, like the one blocked recently following Foxtel's successful legal action.

What Can You Do?

The easy answer is to be really careful. But even taking a photo with a poster in the background can be a copyright violation in some circumstances.

When it comes to music, movies and TV shows, the answer is simple. If you pay a licensed content provider for the content then you're not breaking the law.

If you're making backups of your digital media then that's fine but you need to retain the originals and not distribute the copies.

If you're sharing a small mount of content from a copyrighted source, like a short clip of a song or a page from a book, limit what you share to the smallest amount possible and make it clear that what you're offering is a view or critique.


Comments

    One area I think which is a bit grey is the downloading of a TV broadcast that has already aired.

    Let's take, for example, a formula 1 race. Let's say you missed the broadcast (a reasonable thing to happen since many of them happen very late at night or early in the am for us) and you forgot to set your recording device to record it. What do you do if you want to watch it? There usually isn't a complete rebroadcast of the entire race. On-demand services usually don't have the race either (on a side note, formula 1's own live/on demand service is currently blocked for Australians - gee I wonder who's behind that). So you basically have two options...you either ask someone you know who recorded the broadcast to loan you their copy, or you download it.

    Now, I know that this is technically illegal. But, there's literally NO other legal way to watch that race, that's your only option to watch it. In this kind of situation, where the network has no intention of airing the event again, they are losing literally nothing if you decide to download it. They are not losing any advertising, or subscribers, or ratings. They are losing *nothing*, because they aren't broadcasting that race again. You can make the argument to say "well, you didn't watch it when it aired, so tough luck, you missed it", but this isn't 1990. It's 2018, and we have many options now (with totally legal alternatives that are currently not being utilised) so that's not an argument anymore.

      Even though there is no legal alternative, and the network is losing nothing from the piracy, and even though it's 2018, it's still 100% illegal. There's no getting around that, no matter how unfair it is.

      For broadcasters, it is definitely a case of "tough bikkies". Just because they could provide a legal way to rewatch the race, it doesn't mean that they are compelled to. They may not decide to go that way for any number of reasons, whether its not financially viable to provide a vector, or if they themselves don't have the rights to rebroadcast the event.

      I'm not condoning any of this, by the way, it's just the way it is. It's 2018 for some of us, but broadcasters and rights holders are still well within the 20th century, and currently they have no good reason to leave it. May as well break out the VCR.

        I understand it's illegal, but it's still stupid. Give me a way to rewatch the race and the desire to download instantly goes away.

    they are losing literally nothing if you decide to download it. They are not losing any advertising, or subscribers, or ratings. They are losing *nothing*, because they aren't broadcasting that race again.

    Well, that's debatable. If enough people decide to skip the live broadcast in favour of downloading, it starts to affect ad revenue. This is why they fight the practice - it's more about preventing it from becoming mainstream than going after the tiny percentage of viewers who currently download.

    With that said, I don't think you need to worry about the cops knocking on your door.

      I get what you mean, people will always favour watching the live broadcast especially for something like a sporting event. It's far too easy to encounter spoilers. They certainly won't get enough people skipping the live broadcast for it to have any affect on them, especially with a global thing like Formula 1. With the example of Formula 1, they actually have their own official live stream/on demand service now that you pay a subscription to access - but surprise surprise, it's blocked in Australia. No prizes for guessing who's behind that (*cough*Foxtel*cough*). I'd happily pay that subscription if I could.

    I think most people go with their own moral code on copyright. What seems 'fair' to them. If there is a way for me to pay for something, I'll do that. If you don't offer it in my country, I'll get around that.

    I also don't have issues with say downloading and watching Game of Thrones, then buying a digital copy as soon as it's available. I'm getting it a little early, but paying for it fully shortly afterwards.

    If you own a CD, you can rip a copy of it for personal use but you have to retain the original CD and you can't distribute the copy.

    Are you sure about this one? I thought it fell in the same boat as DVD ripping. Essentially it's technically illegal but they turn a blind eye to it. For that matter I thought that was also the situation with transferring VHS to digital. In either case (CD or VHS) you need the explicit consent of the rights holder.

    It really highlights the stupidity of the copyright laws though. *IF* it's legal to backup your CD or VHS then it absolutely should be legal to do the same for a DVD or blu-ray. Fundamentally the act and purpose is no different so they're basing a law on the assumption that you're lying and planning to sell/distribute copies which is BS.

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