Hang the DJ?
Recently a number of Sydney based DJs were found to have infringed copyright by producing and selling unauthorised “mix tapes”[ii]. What does this mean for DJs and the rest of us who make the occasional mix tape to use in the car?
The Federal Court of Australia found, in Universal Music Australia Pty Ltd v Miyamoto[iii] (Universal) that certain DJs had infringed copyright. They had produced mix tapes using tracks recorded by a number of artists including Ja Rule and Jennifer Lopez. The mix tapes were then sold. The DJs had not sought the permission of the copyright owners of these tracks.
The Copyright Act 1968 (“the Act”) gives copyright owners the exclusive right to reproduce their work[iv]. Copying a track onto a mix tape is a reproduction. Therefore, unless you are the copyright owner, have their permission, or fall into one of the limited exceptions in the Act, you will be infringing copyright[v]. It is also a copyright infringement to sell or expose for sale an item that you know or ought to have known infringed copyright[vi].
The DJs involved admitted to both reproducing certain tracks onto mix tapes and then selling the tapes to consumers. These admissions meant that the Court did not have to address directly the question of whether or not the music sampled or copied actually amounted to a reproduction in terms of the Act.[vii].
Most of us have probably at some point made up a mix tape of favourite hits for our own use or to give to a friend. Strictly speaking, this is an infringement of copyright. In Australia there is no “personal use” exception to copyright infringement except in regards to recording broadcast material i.e television or radio. There has been debate about what some see as the absurdity of average Australians being labelled criminals for making private copies of music for home use. This is countered by copyright owners who argue that if this copying is to be permitted they should receive remuneration for it.
This situation has been addressed in the United States, which allows reproductions for personal use under the Audio Home Recording Act. Manufacturers and importers of digital audio recorders (including, for example, DAT and MiniDisc recorders) and blank media (burnable CD’s etc) have to make royalty payments to a collecting society. The collecting society then distributes this income to copyright owners. At the same time consumers are allowed to make copies of copyright material for personal use.
Australia attempted to introduce a similar “levy” system in an amendment to the Act in 1989. However, the High Court found that the legislation was invalid because the levy system imposed a tax.[viii]. There have been recent initiatives to re-introduce a revised private copying remuneration scheme[ix]. Whether these will lead to changes in the law remains to be seen. However, even if there was an Australian equivalent to the Audio Home Recording Actit is unlikely that this would have provided the DJs with much assistance. Their actions in selling the mix tapes would almost certainly have fallen outside the activities considered to be personal use. For a use to be personal, there must be no commercial or public use of the material.
Even though private copying in Australia currently amounts to an infringement of copyright, and the record industry is becoming increasingly determined in their “war” on copyright infringement, at the moment it is unlikely that Universal and its fellow major record companies are going to hunt you down for making your own mix tape. The reason being, that currently the record companies are not able to come into your home or car to see what you are doing[x]. Of course, if you were to start selling or publicly playing your mix tape you make yourself a bigger target. If the DJs in the Universal case had just been passing the mix tapes amongst themselves, they may have been less likely to attract the attentions of the record companies. However, an infringement is an infringement, even if you do your best to stay under the radar. It is also important to remember that you do not need to be selling or profiting from an activity for there to be an infringement.
Technically speaking, it would be an infringement of copyright to perform someone else’s music in public e.g. playing a track as part of a live set. This potentially places an unrealistic burden on both copyright users in getting permission to play tracks and on owners in collecting income from the people who play their tracks. To streamline the permission and payment process we have the Australasian Performing Right Association Ltd (APRA) and the Phonographic Performance Company of Australia Ltd (PPCA)[xi]. These organisations have schemes in place to collect licence fees for public performances of music[xii]. If you are playing at a club or other venue that has the appropriate APRA and PPCA licences you will be covered. If the venue does not have a licence you will need to speak to APRA and the PPCA about getting one. If you are using or playing one of the mix tapes you have made you would probably still be infringing copyright even if you had an APRA and PPCA licence.
The view has been expressed that the making and trading of mix tapes has been going on for years and is a vital part of DJ culture[xiii]. This may be so. However, an activity will not be legal just because it is widely practised and well established. Copyright is the stock and trade of not only record companies but artists as well and it is to be expected that these copyright owners will use the law to protect their interests. This does not necessarily mean that we are going to see a landslide of actions being brought by copyright owners, although recent developments in the United States may suggest otherwise[xiv]. However, it does send a warning shot across the bow of anyone working in the, at times, grey area of remixing. Get permission or you could be sunk.
If you burned a copy of Sophie Monk to listen to in the car you should be aware that currently you are infringing copyright. As absurd as you may believe this is, until such time as the legislation in Australia has been amended to allow private copying you burn at you own peril.
[ii] For the purposes of this article the term “mix tape” refers to CD’s or other compilations.
[iii]  FCA 812 (18 July 2003)
[iv] Section 31 Copyright Act 1968
[v] Section 101 Copyright Act 1968
[vi] Section 103 Copyright Act 1968
[vii] For more information on sampling see Michael Easton’s ART+law article Music Sampling..
[viii] Australian Tape Manufacturers Association Ltd v Commonwealth (1993) 176 CLR 480
[x] The ability of copyright owners to investigate your online activity has been given a boost by the recent decision in Sony Music Entertainment (Australia) Limited v University of Tasmania  FCA 724 (18 July 2003). The decision allows copyright owners access to ISP subscriber information for the purposes of formulating claims for copyright infringement.
[xii] See Arts Law’s information sheet on Copyright Collecting Societies.
[xiii] Sydney Morning Herald July 23 2003
[xiv] Recently the Record Industry Association of America issued over 200 subpoenas against individuals who they allege have infringed copyright by using P2P software to illegally download music.