Sharman Networks who is preparing to face an alleged music copyright infringement charge in Australia may have hope on a 105-year old defence to defend the charge made by Universal Music Australia. The Boosey vs. Whight copyright charge back in 1899 came due to the production of Pianola rolls using sheets of music was claimed to have violated the English copyright act protecting sheet music. However the defence that time came as the lawyers claimed that playing an instrument by seeing the music is different to playing an instrument using a mechanism to produce music based on a perforated sheet.
As a result, Sharman lawyer JR Ellicot said in court last Friday that taking the contents from a CD and placing it on the computer's hard drive does not result in a copy of a sound recording. Ellicot also said that uploaders on its network must be in Australia for it to be an infringement. Sharman is due back in court on July 1st.
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Sharman lawyer JR Ellicot referred to the 1899 case of Boosey vs Whight in addressing the courts concerns over the defence's lack of cross-claim, he stated "It will be our submission in this case that we are exactly in that position now in relation to sound recordings." Boosey vs Whight (1899) involved copyright charges arising over the production of pianola rolls, in which the court found that the reproduction of the perforated pianola rolls did not infringe the English copyright act protecting sheets of music. Lawyers in the 1899 case forged their defence on the argument that "to play an instrument from a sheet of music which appears to the eye is one thing; to play an instrument with a perforated sheet which itself forms part of the mechanism which produces the music is quite another thing." Sharman lawyers indicated that they are planning to present a similar defence against the accusation made by Universal Music Australia and its affiliates. Read the full article here. |
It will be interesting to see how Sharman gets on with using a 105-year old defence which came long before the first electronic computers, let alone the first tape recorders! In this case, I do not think they would get away saying something like how playing music by reading the physical pits on a CD by a laser is different to playing music by reading the magnetic fields on a hard drive. It would be bad for the music industry otherwise as it could allow consumers to freely copy music so long as they used a different type of medium which requires a different method to play it back.
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Source: ZD Net - Legal Business News
