iPod users in South Africa are criminals: an appeal to the local music industry

Virtually everywhere you go you see the characteristic white earbuds that are attached to an iPod of some description. iPods fly off the shelves and have become synonymous with portable audio players both here in South Africa and elsewhere and yet most people who use iPods here in South Africa are criminals! This may seem a little strong but it really isn’t. Leaving aside the few people who download music illegally from the Web, it is probably fair to say that most iPod (and other portable music player users) have ripped their CD collections (CDs which they spent a small fortune acquiring over time) onto their iPods so that they can listen to their music at gym, while they travel to work or wherever they are. It is far more convenient to carry one device with a few hundred albums stored digitally than it is to carry a few hundred CDs around.

Unfortunately, rippping music from CDs that you buy is illegal. Doing so is a violation of copyright that vests in the artists, music publishers or record companies that have come to own the rights in those CDs and while you are permitted certain private uses of certain items subject to copyright, copying a CD you bought onto your iPod is a right you do not enjoy and when you do that, you commit a copyright violation each time a song is transferred off the CD. It is a good idea to take a look at the fine print on the CD case of one of the CDs you have on your shelf you may see wording like this:

All the rights of the producer and of the owner of the work reproduced reserved. Unauthorised copying, public performance, broadcasting and hiring out directly or indirectly of this recording is prohibited.

When it comes to copyright in sound recordings (like a CD), the Copyright Act has the following to say:

9. Nature of copyright in sound recordings

Copyright in a sound recording vests the exclusive right to do or to authorize the doing of any of the following acts in the Republic:

(a) Making, directly or indirectly, a record embodying the sound recording;

(b) letting, or offering or exposing for hire by way of trade, directly or indirectly, a reproduction of the sound recording;

(c) broadcasting the sound recording;

(d) causing the sound recording to be transmitted in a diffusion service, unless that service transmits a lawful broadcast, including the sound recording, and is operated by the original broadcaster;

(e) communicating the sound recording to the public.
[S. 9 substituted by s. 6 of Act 56/80, amended by s. 7 of Act 52/84 and s. 2 of Act 61/89 and substituted by s. 2 of Act 9/2002]

What this means is that unless you have been given permission by the copyright owner, you may not do any of the things described in this section of the Copyright Act. When you rip your CDs to your iPod, you are clearly making a copy of the CD and that is a copyright infringement. Although some countries have a principle of “fair use” which could include making a copy of the CD for your personal use or for payments to the recording industry based on sales of portable audio players like iPods (a deal to pay Universal a few dollars for every Zune sold was reached between Microsoft and Universal recently), no such thing exists in South Africa. Instead, people who buy iPods and other portable audio players are expected to respect the rights of copyright holders and this means that only music or audio files which are not subject to copyright or in respect of which you have permission to copy them to your device may be copied to your iPod.

The question then becomes, what’s the point? At present South Africans do not have access to the iTunes Store where they may buy music for their iPod, legally. The legal music download sites in South Africa sell popular music in Windows Media Audio format which is incompatible with the iPod and ripping that music to your iPod may well also be a violation of copyright. That leaves law abiding iPod users with little content to legally copy to their devices and the whole idea of having an iPod goes out the window because we are back to carrying stacks of CDs with us everywhere we go because that is the only legal way we can listen to our music.

The music industry in South Africa is clearly behind the times. The industry may throw up its hands and point to the Copyright Act which criminalises any unauthorised use of the music they sell but that is disingenuous because it is within the power of the copyright holders in the music industry to grant permission to people who legally buy the music they sell the permission to copy the music for their personal use. This would includes copy the CDs to their iPods. The only people these limitations really affect are those people who are concerned that they not infringe on copyright. People who disregard copyright are buying music from AllofMP3.com and other arguably illegal music download sites. The alternative that law abiding iPod owners have is not to buy music subject to copyright and to rather seek out music that is published under Creative Commons or which is not restricted. While there is certainly a movement towards publishing music under Creative Commons, the recording industry as a whole is not going to embrace this model in a hurry. As one music publisher pointed out to me, there is simply not enough money in publishing music under Creative Commons. I think there is simply not enough imagination in the recording industry.

We are becoming more digital and moving away from traditional forms of media. This includes CDs and DVDs. The recording industry is simply not keeping up with technological developments and is, in fact, trying desperately to turn back the clock. The unfortunate result here in South Africa is that most of those people you see listening to music on their iPods or other portable audio players are committing a crime everytime they skip to the next song and every time they rip music from a CD they just bought onto their iPod so they can take all the music they love with them when they walk out the door on their iPods and leave their expensive CD collection at home, where it is safe.

So what is the answer? The music industry needs to recognise that iPods are here to stay. They are the most popular portable audio players in the world (well, most of it anyway) and they are the chosen means of carrying around the music that law abiding people buy with their hard earned money. If we are going to have to wait for an iTunes Store where we can buy all that music online and legally, then at the very least, grant us a license to play the music we buy on CD, on our iPods. Let us fill that need and be legal.

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