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11 Can. Bus. L.J. 331 (1985-1986)
Copyright and the Copying Machine: The Amstrad Case

handle is hein.journals/canadbus11 and id is 349 raw text is: COMMENTARY COPYRIGHT AND THE COPYING MACHINE: THE AMSTRAD CASE Amstrad Consumer Electronics plc sold machines for copying pre-recorded audio tapes at high speed. They advertised the utility of the machine for making copies of the tapes at home. Amstrad knew that persons who used the machines would inevi- tably infringe copyright. The reason for the inevitability is that there is copyright in almost every tape or, if the tape itself is a copy, in the master (another tape or record) from which the tape itself was copied.' To copy the tape without the authority of the copyright owner will infringe the copyright in the tape or in the master. Purchase of a tape from a copyright owner confers no implied authority to make a copy, at home or anywhere else.2 Additionally, there is copyright in many original musical compositions and other works that have been recorded on tape,3 the principal exception being old works in which the copyright has expired. Consequently, to copy a tape on the Amstrad machine is likely to infringe two copyrights, one in the original composition and another in the tape itself or in the master from which the tape was made. Occasionally there may be a non-infringing use, such as where a copyright owner uses one of the machines to copy his own works, or where permission to copy has been obtained from the coyright owner or owners. The British Phonograph Industry Ltd. (BPI) was incorpo- rated at the instance of major U.K. recording companies to advance and protect their interests. BPI made various allegations that Amstrad were acting illegally in advertising and selling their copying machines. Amstrad responded by applying for a decla- 1 See Canadian Copyright Act, R.S.C. 1970, c. C-30, s. 4(3) (rep. & sub. R.S.C. 1970, c. 4 (2nd Supp.), s. 1); (4) (enacted idem); Copyright Act, 1956 (U.K.), c. 74, s. 12, which distinguishes between the physical record and the sound recording embodied therein. 2 To play the purchased tape at home will not ordinarily be an infringement of copyright because a performance, to infringe, must be in public: Canadian Copyright Act, s. 3(1); U.K. Copyright Act, s. 2(5)(c). In Canada, there is no performing right in the tape itself: s. 4(4), whereas there is such a right in the U.K.: s. 12(5).

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