M'Learned Web: the MP3 debate

Robin Bynoe is a partner of the Charles Russel law firm.

A short history lesson

Not long ago in the great scheme of things, the record industry warned that it was in danger of imminent annihilation because of home-taping.

Instead of paying large sums of money for records, people would spend a few pence on a C90 and copy their friends'. The quality was appalling and finding a particular track in a hurry was impossible, but it was cheap.

It was also illegal. It nearly always involved a breach of two separate copyrights: song copied and the original recording.

Alongside the rhetoric from the record companies came the rhetoric from the manufacturers whose hardware made it all possible. Their line was that their machines didn't breach anyone's copyright; if people used them to do so that was deplorable; besides, it was perfectly possible to imagine a law-abiding use for a tape-to-tape recorder. The courts agreed.

The record industry was not annihilated. It survived quite well. Possibly, home-taping introduced people to music that they would not otherwise have heard, and which they then went out and bought more of.

But now we're told that it's in trouble again. This time the rogue technology is MP3. The analogies are quite similar, except that MP3 is like home-taping on a world tour.

MP3 is pretty harmless...used correctly

MP3 is nothing more than software that enables you to copy music, particularly from the Internet. It's fast, efficient and -- unlike C90s -- the quality is comparable to CDs.

As with a C90, copying without permission breaches the copyright owned by the composer and by the owner of the recorded track. There is nothing illegal about MP3, apart from what it might be used for.

There are various initiatives devoted to shutting the stable door after the horse has bolted. The SDMI is a body set up by the record industry to look at standards for the legal copying of music off the internet, where the copyright owner gives permission and charges a fee. There's undoubtedly a market for this. People download music as an alternative to trekking to a record store which might be out of stock. There are also proposals for watermarking recordings so everyone can see whether copies are legal.

MP3 on the Net is rife

The problem is that it's too easy to find and download illegal, copies of recordings on the Net, if you have MP3 or one of its equivalents, and also play them back in CD or some other convenient form. In this case both the owner of the Web site and the consumer will have breached copyright. But it will be next to impossible for the record companies to find them and very costly to pursue them. In time-honoured fashion, they will no doubt blame the ISPs, but that will be small consolation.

So long as we can learn to live without the CD's charmingly fragile plastic packaging and the little booklet inside, that will be that. The legal position is unambiguous, but the practicalities are insurmountable.

What now?

So what's the solution? A radical change in the law? Some countries, such as France, solved the home-taping crisis by accepting that you could not control illegal copying, and imposing a levy on the materials, the tapes, money that found its way back to the copyright owners whose rights were being broken.

The same could happen now, but it is no longer feasible in a single country. It would take not only will and imagination, but also unprecedented international co-operation.

We now come to the final bit of rhetoric: music belongs to the people and copyright is seen by some as nothing more than a device, a conspiracy to protect the vested interests of greedy record companies.

CDs are a rip off

It is true that the record companies, with their dogged belief that the English can be persuaded to continue to shell out nearly £16 for a CD, will not win our sympathy. The fact remains that most records make losses and, without the £16 from the profitable ones, they would not get made at all.

It would be an agonising irony if the outlaw spirit of the Net condemned us all to a diet of unadulterated Whitney Houston.

Robin Bynoe is a partner of the Charles Russel. law firm in London. If you want to respond to this article tell the mailroom.