Parallel [imports] communications to the public


Now, we all know that you can legally download digital copies of recorded music from Apple's iTunes (even in benighted DownUnder) for AU$1.69 per track. There are, however, news reports that the record companies in the UK are threatening to sue Pommy customers of allofmp3.com ...

Allofmp3.com is a Russian operation which claims to have licences from whoever has the rights in Russia to recorded music. It lets people with an internet connection buy recorded music online even more cheaply than iTunes. So much more cheaply that the Bleeding Edge claims to have started an international run on its services nigh on 2 years ago. (I do remember reading the original article.) See more here and here.

As that last link indicates, RIAA (who still appear to be off-air) is apparently lobbying the US Government to put Russia on one of those Special 301 watchlists. That kind of, er, subtle (or not so subtle if you are not as big as Russia) pressure may take awhile to work which puts the latest move in the UK in context particularly as the news report claims that allofmp3.com has 44% of the (presumably legal) market for downloads there.

If you are sitting at a computer terminal DownUnder (on the west side of the Tasman), you may be thinking to yourself that it'll be all OK as our Copyright Act specifically mandates parallel imports (see e.g. ss 44D and 112D and the definition in s 10AA - the "e.g." is necessary as you could almost write a book on the interaction of some of the other provisions like 44C and 44F (e.g.) with this issue - and, in any event, if you were simply importing an LP/cassette/CD/DVD genuinely for your own personal use and not for sale etc. you probably wouldn't even be infringing s 37 anyway.

But, perhaps, you shouldn't be so comfortable. It could well be argued that none of those provisions apply in this situation.

Break it down: there is a communication to the public involved in the transmission from allofmp3.com's servers (wherever they may be) and then (at least) a reproduction/making of a copy of the musical work/recording on your computer's hard drive. Those actions, if not with the consent of the copyright owner, implicate s 36 (and 101) of the Copyright Act, not s 37 (and 102).

Hmm, how do ss 44D etc. apply to those actions? Certainly, they say quite broadly that copyright is not infringed, but have you imported a "copy" (check out the definitions of "copy" in s 10(3)(c) and "record" in 10(1). Did allofmp3.com have the power to authorise your actions from the owner of the Australian copyright? Did it even need it - go back to s 10AA?

Posted: Thursday - 01 June, 2006 at 06:30 PM         |

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