Have you ever set your VCR to record your favourite lunch time soap opera while you were at work in order to watch it when you returned over dinner? Or e-mailed an article to a friend that you found on-line?

'Space shifting' refers to the act of shifting recorded copyright protected works from one medium to another.

For example, shifting a MP3 file on your computer to a compact disc. In the famous American case of Napster, it was argued that downloading MP3 music files from the Napster database was not the kind of copying that would amount to an infringement. Rather, this was merely space shifting and should be permissible as fair use of the copyright protected songs.

TIME SHIFTING

A parallel was drawn with 'time shifting', which was accepted as fair use in the case of Sony Corporation vs. Universal City Studios. Time shifting refers to the act of using a device such as a video recorder to copy a copyright protected film, broadcast or cable programmes in order to watch it at a time and place chosen by the viewer for his convenience.

However space shifting was rejected by the US Court on the basis that time shifting and space shifting did not have the same effect vis--vis the copyright protected work. The former was a one-off reproduction of the work for private use. The latter, as facilitated by Napster, provided a forum for multiple copies to be made on a commercial scale with relative ease and at limited or no costs, thereby depriving rights owners of royalty earnings to which they would otherwise be entitled.

Is this a justifiable point of view for the Court to have taken?

Could it be argued that all Napster did was to provide their clients with the technology to copy? Although the MP3 software that they made available to their clients had as its primary function the facilitation of producing impeccable copies, it remained possible to use the software to copy in a manner which was fair use, not only to infringe.

Whether the software was used to carry out infringing activity depended on the clients, not Napster. Further, at no time did Napster authorise it's clients to commit copyright offences in this way.

Compare the case of Sony's VCR recorder, which also had this duality of function. Is it not really a question of control, which, in this case, is being exercised by the end user of the technology, not the provider?

The US Court in Sony held that contact between Sony and the purchasers of the VCR recorder came to an end on the conclusion of its sale. Consequently it could not be said that Sony had any control over what the users did with the VCR recorder in the privacy of their homes.

In Napster, the Court held that Napster maintained control over the MP3 mechanism and as such they could be held responsible for the use made by their clients to make unauthorised reproductions.

DIFFICULT TO GRASP

It is difficult to grasp the distinction being made between time shifting and space shifting.

Is the inference to be drawn that downloading music from the Internet will not be deemed private use because of the limitless possibilities for copying which the technology permits?

This case illustrates the challenges posed to conventional copyright laws by the digital millennium and how courts have grappled to find a creative approach to fill the lacunas in the interest of copyright holders.

Jamaica has recently acceded to the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT), collectively referred to as the WIPO Internet Treaties.

Amendments to the Copyright Act, which are required to implement the provisions of the Treaties, are currently in progress. This move is welcome and timely, putting Jamaica in the forefront of countries which have sought to modernise their copyright regimes. The key on implementation is to ensure that efforts to strengthen copyright laws do not sacrifice the traditional freedoms which users have enjoyed in order to access and share information.

The WCT provides for 3 main rights in favour of the copyright holder: (i) The Internet making available right to control the dissemination of protected works on the Internet;

(ii) The right to use technological measures to affix protective mechanisms to protected works to prevent unlawful copying;

(iii) The right not to have rights management information removed from protected works.

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