MP3: What’s piracy, what's not (at least in Italy)

This post is actually a continuation of the two I posted in December, which left a couple of open questions:

  1. Is it legal to create MP3 files out of music CDs you legally own, to take them away with you and listen to them more comfortably (e.g.: with an iPod, or an MP3-enabled car stereo)?
  2. Is it legal to create MP3 files out of music CDs you legally own and then lend the original CDs to someone else?

The answer, of course, depends on the laws of the country you live in.

Let’s look at the Italian legislation and have a quick peep at the EEC’s. What follows is the answer of Massimo Farina, an Italian lawyer and friend of mine, who specializes in legal issues related to new technologies.

Encoding audio CDs to MP3s is to be considered lawful as a consequence of the following considerations of interpretational and normative kind.

The first thing one may suspect is that the encoding is a copyright infringement because the act of creating an MP3 could be considered a transformation of the work and, hence, not allowed by the law. In fact, the Italian legislation states that a transformation of the work is allowed to no one but the author of the work itself. Actually such unlawful transformations, punished by the law, are the ones that are harmful to the image of the author; that is, when you deprive the work of its fundamental character that makes it unique.

On the contrary, creating an MP3 is to be assimilated to a private copy, and hence it is lawful by the italian Legislative Decree 68 dating April 9th, 2003 (DLgs 68/03) which introduced modifications to the Italian copyright law (dating back in 1941!). The decree actualized an European directive aimed to harmonize the laws in the European countries on the subject, and taking into account the issues raised by the new technologies.

In case you want to do some research by yourself, it’s the 2001/29/CE directive.

With the old copyright law so modified, it is allowed for a single citizen (a physical person, not a company of any kind) to legally reproduce, for exclusively personal use, audioworks and videoworks. But this comes at a cost. In fact, to counterbalance the benefits for the consumers derived from the “private copy faculty”, a compensation was provided in favour of the authors, artists and makers: an additive tax on supports (writable CDs and DVDs, magnetic tapes and so on) and recording devices.

Yes, you understood it very well: in Italy when you buy a DVD recorder and a bunch of writable DVDs to make backups of your files, you are preemptively paying a tax for the personal copies of copyrighted material that you might make, even if you never do. Neat, huh?

About lending out MP3 files: a strict application of the law does not allow a contemporary use to different people. A copy is allowed for a private use, otherwise it is equivalent to the unallowed distribution (forbidden by the Italian law). If, on the contrary, no one is using the MP3 copy during the lending of the original, everything is back to legal.

Massimo’s explanation goes on with some excerpts of the Italian copyright law (it’s the 633/1941, article 171), but I think you’ve already got the idea.

What’s the situation in other countries? While I wait for a Massimo’s comeback on the subject feel free to comment with the situation in your country. Happy new year!


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