February 2003

Record Labels, Music Publishing, Internet
Sony Music Entertainment (UK) Ltd. & Others -v- Easyinternetcafe Ltd. (2003)

Mr Justice Smith held that Easy-internetcafes were guilty of copyright infringement by allowing customers to download music and burn CDs at their chain of internet cafes. Investigators for the BPI (British Phonographic Industry) found that hundreds of tracks had been downloaded in the cafes. Users paid £2.50 (approx US $4) for the download and a further £2.50 to buy each CDR. Mr Stellios Haji-Ionannou, owner of the chain of internet cafes, said that he will appeal the High Court decision and that the music industry was itself guilty of ‘extortion’ for overcharging for CDs and that ‘copying music over the internet is no different to videotaping a programme to watch later’. In the UK ‘time shifting’ by copying TV programmes onto a VHS is legal (under the Copyright Designs & Patents Act 1988) for personal use but copying records and films otherwise unavailable is a copyright infringement. In the US case of RIAA -v- Napster (US, 2000) the so called ‘VCR defense’ failed to protect Napster against claims from the Recording Industry Association of America which shut the service down. Damages in the Easy-internet case have yet to be determined.
[See Adam Sherwin, The Times, 29 January 2003]
The BPI (British Phonographic Industry) represents the recording industry in the UK.

COMMENT : There is an interesting legal argument arising from this decision. In UK law there is a provision for making copies of a cable programme for private and domestic use (ie. ‘time shifting’). Whilst clearly Easyinternetcafe’s actions were not for private and domestic use (as they were selling the CDs) IF the delivery of music or films by the internet WERE held to be a cable programme (and there is authority for this in the case of Shetland Times -v- Wills (1997)) then private individuals could make copies for private and domestic use without infringement of copyright (under section 70 of the Copyright Designs and Patents Act 1988). As Mr Justice Smith stated, individuals could build up ‘a substantial private library’ for domestic use. This will be food for thought for the record labels!

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