Monday 4 April 2011

Quicker than making a cup of coffee

The Advertising Standards Authority in the United Kingdom isn't often called upon to make a ruling that reflects on contemporary copyright issues, but it had to do just that in ASA Adjudication on 3GA Ltd, complaint 140713, adjudicated on 30 March 2011 (here). What was it all about? The ASA's website explains
A national press ad, for a CD player with hard disk, included text that stated 
“Good news for CD owners. The Brennan JB7 is a CD player with a hard disk that stores up to 5,000 CDs ... It saves space and clutter and delivers near immediate access to an entire music collection. JB7 owners rediscover then fall in love with their music again simply because the Brennan makes it so accessible. The Brennan also records from vinyl and cassette so you can enjoy your entire music collection but keep it out of the way in another room or retire it to the attic … What’s the point in owning hundreds of CDs worth thousands of pounds if you never listen to them? [Perhaps their owners lay them down, like wines, as investments in the future] The problem with CDs is that it’s quicker to make a cup of coffee than dip into a CD. Try timing how long it takes to pick a CD, load it in the CD player, play a snippet from a track or two, eject it and put it back where it came from. Then there is the problem of finding music. The print on a CD spine is tiny. What if the track is on a compilation CD? What if the CD is in the car? Then there is the clutter. You need to keep your CDs near the player or you won’t play them. So you are forced to share your living space with hundreds of cheap plastic boxes. [But they furnish a room so well, and provide wonderful conversational ice-breakers for visitors checking out your cultural preferences ...] CDs are great but they are also inconvenient, inaccessible and a bit of a chore ... Key Points One button plays the entire collection at random ... Load CDs in about four minutes ... One touch record from vinyl, cassette or radio Loads and plays MP3 from USB ... Used by restaurants, hotels, pubs, dentists, schools Backup music to external USB for safe keeping … ”. 
The ad also included a quotation from Martin Brennan, which stated 
“I always liked the promise of CDs. It wasn’t so much the quality but the quick access to a given track. After vinyl and cassette that was a real plus. My first CD player was a five CD multi changer. My second was a ten CD changer for the car. I liked the idea of quick access to more than one CD and music that didn’t repeat after 40 minutes. These players were fine but a bit clunky - there were several seconds of silence between CDs and in the car I could never find the right CD. A few years ago I had a go at loading my cassette collection onto a PC. Cassettes were obsolete but I owned around 100 and the music on them reflected an important period in my life. I recorded all of the cassettes on to the PC over a period of several weeks. The thing is I never listened to the music on the PC. Somehow using a computer to listen to music never worked out. Maybe the computer was in the wrong place but I think it lacked the immediacy of a physical play button. In the end the computer got a virus and the music files were lost - I still had the cassettes thankfully. The JB7 is really my personal ideal music player”.
The complainant challenged whether the ad incited consumers to break the law, because it was illegal to copy music without permission from the copyright owner.
3GA said the JB7 was one of a new generation of audio devices that offered the facility to load CDs onto an electronic memory to enjoy them better. They said they were not aware of any owners of the product being charged for, or convicted of, infringing copyright and therefore there was no evidence that the ad incited consumers to break the law [can readers spot the illogicality of that proposition?]. They said there would be no evidence of that unless there was a judgement against a JB7 owner. However, it was apparent from the number of such products available that that was unlikely to happen [Does that mean there were so few products available that there was unlikely to be such a judgment, or so many -- so far without a judgment against them -- they what hadn't happened yet wasn't likely to happen in the future?].

3GA said they believed two elements of copyright legislation could be interpreted as being applicable to consumers who enjoyed their music using such devices, because they were essentially music players and, provided the user was playing music they were legally entitled to listen to, the fact there was an electronic copy was incidental and had no independent economic significance. They said the JB7 was different to, for example, a cassette or CD recorder that was used to make physical copies of the work. They said in those instances the copy was a primary function rather than simply part of the playback and therefore using the Brennan as described in the ad was specifically allowed by legislation under the term fair dealing, in which the economic impact on the copyright owner was not significant. They said a consumer who listened to their own material using a Brennan was of no economic consequence to the copyright holder whereas such devices could also be used in ways where the copy was not incidental and had an economic impact; for example, borrowing a CD to load onto the device. 3GA said such use, of a computer or new generation audio device would, therefore, infringe copyright.

They said there were illegal uses for many products however the majority of consumers understood the law and were law abiding so ads for products such as stockings, which could be used for robbery, did not include warnings related to illegal use. They said they did not wish to include such explanatory text in their advertising because it was not possible to summarise copyright law in such a way. 3GA were also concerned that the inclusion of such text could actually incite illegal activity by giving consumers the idea of, for example, copying borrowed material.

Assessment: upheld
The ASA noted the product was a CD player as well as having a hard disk to store CDs and also record from vinyl and cassette. We also noted, however, it repeatedly made reference to the benefits of the product being able to copy music but did not make clear that it was illegal to do so without the permission of the copyright owner. We considered the overall impression of the ad was such that it encouraged consumers and businesses to copy CDs, vinyl and cassettes. In the absence of prominent explanation, we concluded that the ad misleadingly implied it was acceptable to copy CDs, vinyl and cassettes without the permission of the copyright owner. We also considered that the ad encouraged people to use the advertised product in this way and that, therefore, it incited consumers to break the law.

The ad breached CAP Code (Edition 12) rules 1.10 (Legality) and 3.1 and 3.3 (Misleading advertising).

The ad must not appear again in its current form. We told 3GA to ensure future ads for such products prominently stated that it was unlawful to copy material without the permission of the copyright owner.
I just took a quick look at the Brennan website. The only mention of "copyright" comes at the bottom of the page, where it says "© Copyright 2010 3GA Ltd. All rights reserved. Privacy Policy".

A further thought: shopping trolleys are advertised in the media, but there have never to my knowledge been any complaints that those who advertise them must state prominently that it is unlawful for purchasers to pop their shopping into them without paying for them.  Double standards, or a reflection on the fact that we assume that people know they shouldn't steal but are ignorant of copyright?


Anonymous said...

Where are we on this issue, Jeremy? Have the PRS, PPL and BPI granted us home users a licence to copy our CDs to our own computers and MP3 players? Is the government still interested in making a similar change to the statue? Should writers and peformers be insisting that new CDs come with such a licence? If not, then by the ASA standard, are the authors and performers themselves incting the infringment by disctibuting CDs, when they know that most of their fans use the CDs by ripping, without a positive notice saying that they do not permit such use?

Lets have an opinion from 1709!

Jeremy said...

I stripped a great swathe of opinion out of my first draft of this piece, in the hope that it would attract some responses representing the views of I'm now learning to call stakeholders.

I was personally a little surprised at the ruling, being of the generation that lived through the House of Lords decision in Amstrad. I've just checked the advertising material concerning my car: it doesn't warn me not to park in other people's driveways ...

Francis Davey said...

I suspect that most people do understand the law of theft better than that of copyright infringement. I'd expect that a reasonable questionnaire on specific situations for (a) theft and (b) copyright infringement would be answered much better by the general public for theft than copyright.

Indeed if someone has some time/money to spend this might be an interesting thing to do.

There are odd edge cases in both sets of laws, but the edges of copyright are far more blurred and the general understanding of what is allowed much less prevalent than for theft.

At least that's how it seems to me.

AndyJ said...

This brings to mind the comments of His Honour Judge Birss in relation to a claim that leaving one's wifi unsecured was to 'authorise' infringement. See Media CAT v Ors - para 19(iii).
"The plea that "allowing" others to infringe is itself an act restricted by s16 (1)(a) and 17 of the 1988 Act is simply wrong. The term used by those sections of the Act is "authorising" and the difference may be very important if the allegation is about unauthorised use of an internet router by third parties."

John R walker said...

We do not actually listen to a CD.

A CD is a piece of plastic covered in billions of microscopic pits, these pits encode for long strings of 1 & 0 , strings that when supplied to an appropriate interpreter ( in this case a 'CD player' that sounds like a PC with a turntable on top) these strings of 1 & 0 become sets of instructions that result in the vibration of membranes in speakers , vibrations that finally create the complex aperiodic patterns of sound waves that we call music.

In this matter -Is the 'IP' the physical CD ? or is it the set of instructions encoded in binary code, or what?

Obviously I could use my Mac to do exactly the same sort of thing , I don't recall any warning on the box about not using it to do illegal things- Is the situation different in the UK?

Ps Ever Read of 'Ant Hillery , Achilles , MR Crab and Mr Tortoise '?

AndyJ said...

@ John R Walker.
By your analysis, we do not 'listen' directly to any physical recording of music, including arguably sheet music. However I'm not aware of any caselaw which upholds the notion that a vinyl record, magnetic tape or wax cylinder recording does not constitute 'a copy'. The UK CDPA 1988 gets around the CD or binary data question you pose by stating in s17(2):
"(2) Copying in relation to a literary, dramatic, musical or artistic work means reproducing the work in any material form. This includes storing the work in any medium by electronic means."

John R walker said...

As physical copies become rarer and rarer ,what constitutes a 'copy' as in : a performance of a piece and a copy as in : a copy of the set of instructions that are used to create that performance, will get harder to make.

AndyJ said...

@ John R walker.
That's a bit metaphysical for me! Copyright protects the fixation of the idea. There is a distinction between the creative work and its performance (only where it can be 'performed', obviously) so whilst clever musicians can hold the score of a piece of music in their heads, most other mortals rely on "the set of instructions" you mention in order to reproduce either the original work themselves, or the perfomance of others of the work. But either way the performance is entirely unique and separate from the underlying work, and hence worthy of separate copyright protection (in law anyway!). I see no general difficulty in maintaining the definitions of what is an original work, a performance of that work and the recording of the performance of the work, irrespective of the greater use of digital processes for the last stage in that progression. Dare I say it, we may well be able to follow the lead of the criminal caselaw when it comes to defining making and copying digital files, where this has been done in cases involving child pornography and the internet.

[Afternote: Not for publication. Jeremy, please feel free to discard this response if you feel it is off-topic, or too much like troll-feeding!