I thought I'd ask m' learned friend and colleague, barrister Tom St Quintin of IP specialists Hogarth Chambers, to give me his personal thoughts on this saga. And as you can see from below, Tom has certainly done that. I asked him to think about the position both where the device with content is gifted, and about the music in isolation. Caveat - whilst Tom has given thought to this, don't treat this post as formal legal advice (that'll cost ya!).
"Thinking about it now, it seems to me that (subject to any consumer protection measure, that might make certain terms unenforceable) there is nothing wrong with a party expressly making a contract and therefore a licence, non-assignable, so the benefit of that licence can’t be assigned or transmitted on death.
However, in the circumstances of a music collection, the question arises as to what licence is needed. In the days of vinyl records, no restricted act takes place in the course of listening to the record (in private). Therefore no licence is needed to make use of the record, and it can easily be passed in a will. In the case of a CD collection, I think that the process of playback, although digital, does not involve any buffering. There is therefore again no restricted act and so licence is necessary to enjoy the CD collection in private.
In the case of a mini-disc, or downloaded music, the track is stored in an encoded format. In order to get the music out and to play it seamlessly, the parts of the music are loaded into memory to create a buffer. Suppose the will passes a collection of mini discs or an ipod with all
the music stored. There is no right under copyright that prevents someonepossessing a lawfully made copy.
What happens when the music is played? The buffering for decoding means that there are transient copies, (of a duration I do not know –when decoding a satellite TV signal, about 160 milliseconds, or 4 frames, is buffered). That reproduction in the buffer might be a restricted act if any of the fragments, taken alone, comprised the author’s own intellectual creation. (See FAPL at the CJEU, Case C-403/08, paras 153 to 159). In the case of a musical work, a very short fragment might suffice, but it seems to be that, even in the in case of a large collection of music, the buffer would probably have to be around an order of magnitude larger before something that amounts to a reproduction takes place. Is there a defence to any allegation of infringement by this reproduction? Well, not under the original licence, which was personal to the deceased.
However I think the transient copies defence under Art5(1) of the Infosoc Directive would apply: the buffered copy is temporary, transient, and integral to a technological process. It seems to me that it has no independent economic significance – the only economic significance would be that it prevents the listener from buying another copy. That is a circular argument, and is of the same type as the one dismissed in FAPL. Does it therefore enable a lawful use? It seems to me that it does: listening in private is what is enabled , and that is not a restricted act. Even if there was a restriction in the contract that prevented listening by anyone other than the purchaser, that was a contract with another person (now dead), so would not prevent the inheritor from listening (it would also create the absurd position that I could never lend an iPod to a friend to listen to music that I had
downloaded without infringing copyright).
The further issue with a digital music collection is back up or device updates: copying to a different device or to a backup store would necessarily involve an act of reproduction. Those copies would take an element of the author’s own intellectual creation and would not be transient – the only purpose in them is to create persistent copies of the tracks.
Given that the licence is expressly personal to the deceased and non-transferable, I can’t see that the inheritor could rely on that. In the UK, s. 56 of the CDPA makes provision for transferees of works in electronic form to take the same rights as the original licensee, but it only applies in the absence of express terms that prohibit the transfer of any licence. As a result, it would seem that copying to a new device or making back up copies by the inheritor would be an act of infringement. In response to such an allegation, I can see an (ambitious) argument that moving the songs from one device to another in a way that deletes the older copies does not amount to an act of reproduction, on the basis that “reproduction” necessarily involves a duplication (i.e. there being more copies after the reproduction than there were before). This is the sort of thing I could imagine the CJEU deciding, perhaps on the basis that there is no damage to the economic interest of the copyright owner in such a case. (I note that s.56(3) of the CDPA seems to undermine this argument, but, as a purely national provision, that would be of no interest to the CJEU).
What are the consequences of this? First, it must be noted that any claims by copyright owners to prevent people from transferring tracks on an inherited device to a newer device are highly unlikely to be brought – record companies has never (to my knowledge) seriously suggested pursuing those who copy CDs onto iPods. However, there is something distasteful about laws that are disregarded by everyone remaining on the statute books. If proposed amendments to permit format changing (e.g from CD to iPod) as proposed by the Digital Economy Act come into force, then why
not also expand s.56 to give greater rights to inheritors, regardless of contractual restrictions?"
Laurie adds: this issue clearly needs sorting and I'm sure will get sorted. It's too important not too.
Enjoy a sunny weekend.