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In our class, Diplo Internet Governance Capacity Building Programme 11 - Pacific, we have had the following question, which we intend to share with this community so that we can share views:
With the availability of many MP3 gadgets, ipods, mp3 players, etc, many people "illegally" convert
their cd music to mp3 formats so that they can download to their gadgets and listen. Is this piracy? Is this cybercrime?
And secondly, sharing of music online: we have always shared music, borrow someones cd
and listen for a while. We know its not right to copy the cd. With the advert of portable computer formats, it does not make sense to borrow an mp3, you simply copy it. Many young people also share files, including copyrighted music using file sharing software. This is yet another form of piracy. Is this cybercrime? Do people who do such things "feel" like criminals in the same way as someone who would be robbing a bank online would "feel"? Should cybercrime and IPR be associated, or should they be treated independently?
There are exceptions and limitations to copyright.
The three-step test - by which limitations on exclusive copyrights are confined to 'certain special cases' which do not 1.conflict with a 'normal exploitation of the work' and
2.do not 'unreasonably prejudice the legitimate interests of the author'- is among the most enduring of standards affecting limitations on intellectual property rights. Its field of application is the delicate balance between exclusive rights and sufficient breathing space for the free flow of ideas and information.
There sharing of files for private consumption in this case will not constitute cyber crime or piracy.
If you posses legal copy of music on a CD and you "rip" it for mp3 for your MP3 player it can be considered backup, as you are still listening to your own copy you have bought. Ideally publishers would like you to buy MP3 (variant) copy for that purpose but in practice this is usually OKayed since you have already purchased your own copy.
If you are putting this mp3 online, this is already PUBLISHING (as much as you would copy a CD for each one who gets it from the net) and publishing is discouraged as you'd need to pay royalties for that (as much as radio does). Giving a CD to someone and sharing MP3 online is not the same concept of sharing your own copy.
Theoretically if you have MOVED (not copied) your copy of ripped (or purchased) MP3 to someone personally and that someone after listening MOVED it back to you (as you'd do with the CD) then you could not infringe rights. You can listen as many times something you or someone that you gave that COPY you licenced.
In theory if you are playing CD and your birthday party at home to your friends you are BROADCASTING and shall be considered infringement. In practice this is not enforced. It could be enforced if you do the same in public place however.
I am giving examples not out of competence but to illustrate what is 'logically' considered "right" and "wrong".
(IMHO: I do not want to say that media sharing is wrong or right - there are different views about sharing of knowledge - intellectual rights may be a big development obstacle. In essence intellectual property regulations protects the right to capitalise on intellectual property = this is to say that, logically, if there is no CAPITALISATION issue, we would not have issue of intellectual property protection, except for the right of ORIGIN/AUTHORING. We cannot enforce one or another side if we want to achieve opposite interests, but we can change the system that puts this OBSTACLE in place. So whole story about IP regulation is logically a DEAD END and shall be considered transitional solution for the contemporary world = compare music media with for example open source software ....
there are other explanations - such as the process of "copying" itself - once artist performed in front of audience it shared its mastery in one controlled performance, once that performance could be technologically recorded and copied, pandora box has been opened and all sorts of trouble and regulations came to force )