Ad
A national press ad, for a CD player with hard disk, included text that stated
“Good news for CD owners. The Brennan JB7 is a CD player with a hard disk that stores up to 5,000 CDs ... It saves space and clutter and delivers near immediate access to an entire music collection. JB7 owners rediscover then fall in love with their music again simply because the Brennan makes it so accessible. The Brennan also records from vinyl and cassette so you can enjoy your entire music collection but keep it out of the way in another room or retire it to the attic … What’s the point in owning hundreds of CDs worth thousands of pounds if you never listen to them? [Perhaps their owners lay them down, like wines, as investments in the future] The problem with CDs is that it’s quicker to make a cup of coffee than dip into a CD. Try timing how long it takes to pick a CD, load it in the CD player, play a snippet from a track or two, eject it and put it back where it came from. Then there is the problem of finding music. The print on a CD spine is tiny. What if the track is on a compilation CD? What if the CD is in the car? Then there is the clutter. You need to keep your CDs near the player or you won’t play them. So you are forced to share your living space with hundreds of cheap plastic boxes. [But they furnish a room so well, and provide wonderful conversational ice-breakers for visitors checking out your cultural preferences ...] CDs are great but they are also inconvenient, inaccessible and a bit of a chore ... Key Points One button plays the entire collection at random ... Load CDs in about four minutes ... One touch record from vinyl, cassette or radio Loads and plays MP3 from USB ... Used by restaurants, hotels, pubs, dentists, schools Backup music to external USB for safe keeping … ”.
The ad also included a quotation from Martin Brennan, which stated
I just took a quick look at the Brennan website. The only mention of "copyright" comes at the bottom of the page, where it says "© Copyright 2010 3GA Ltd. All rights reserved. Privacy Policy".Issue“I always liked the promise of CDs. It wasn’t so much the quality but the quick access to a given track. After vinyl and cassette that was a real plus. My first CD player was a five CD multi changer. My second was a ten CD changer for the car. I liked the idea of quick access to more than one CD and music that didn’t repeat after 40 minutes. These players were fine but a bit clunky - there were several seconds of silence between CDs and in the car I could never find the right CD. A few years ago I had a go at loading my cassette collection onto a PC. Cassettes were obsolete but I owned around 100 and the music on them reflected an important period in my life. I recorded all of the cassettes on to the PC over a period of several weeks. The thing is I never listened to the music on the PC. Somehow using a computer to listen to music never worked out. Maybe the computer was in the wrong place but I think it lacked the immediacy of a physical play button. In the end the computer got a virus and the music files were lost - I still had the cassettes thankfully. The JB7 is really my personal ideal music player”.
The complainant challenged whether the ad incited consumers to break the law, because it was illegal to copy music without permission from the copyright owner.
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Response
3GA said the JB7 was one of a new generation of audio devices that offered the facility to load CDs onto an electronic memory to enjoy them better. They said they were not aware of any owners of the product being charged for, or convicted of, infringing copyright and therefore there was no evidence that the ad incited consumers to break the law [can readers spot the illogicality of that proposition?]. They said there would be no evidence of that unless there was a judgement against a JB7 owner. However, it was apparent from the number of such products available that that was unlikely to happen [Does that mean there were so few products available that there was unlikely to be such a judgment, or so many -- so far without a judgment against them -- they what hadn't happened yet wasn't likely to happen in the future?].
3GA said they believed two elements of copyright legislation could be interpreted as being applicable to consumers who enjoyed their music using such devices, because they were essentially music players and, provided the user was playing music they were legally entitled to listen to, the fact there was an electronic copy was incidental and had no independent economic significance. They said the JB7 was different to, for example, a cassette or CD recorder that was used to make physical copies of the work. They said in those instances the copy was a primary function rather than simply part of the playback and therefore using the Brennan as described in the ad was specifically allowed by legislation under the term fair dealing, in which the economic impact on the copyright owner was not significant. They said a consumer who listened to their own material using a Brennan was of no economic consequence to the copyright holder whereas such devices could also be used in ways where the copy was not incidental and had an economic impact; for example, borrowing a CD to load onto the device. 3GA said such use, of a computer or new generation audio device would, therefore, infringe copyright.
They said there were illegal uses for many products however the majority of consumers understood the law and were law abiding so ads for products such as stockings, which could be used for robbery, did not include warnings related to illegal use. They said they did not wish to include such explanatory text in their advertising because it was not possible to summarise copyright law in such a way. 3GA were also concerned that the inclusion of such text could actually incite illegal activity by giving consumers the idea of, for example, copying borrowed material.
Assessment: upheld
The ASA noted the product was a CD player as well as having a hard disk to store CDs and also record from vinyl and cassette. We also noted, however, it repeatedly made reference to the benefits of the product being able to copy music but did not make clear that it was illegal to do so without the permission of the copyright owner. We considered the overall impression of the ad was such that it encouraged consumers and businesses to copy CDs, vinyl and cassettes. In the absence of prominent explanation, we concluded that the ad misleadingly implied it was acceptable to copy CDs, vinyl and cassettes without the permission of the copyright owner. We also considered that the ad encouraged people to use the advertised product in this way and that, therefore, it incited consumers to break the law.
The ad breached CAP Code (Edition 12) rules 1.10 (Legality) and 3.1 and 3.3 (Misleading advertising).
Action
The ad must not appear again in its current form. We told 3GA to ensure future ads for such products prominently stated that it was unlawful to copy material without the permission of the copyright owner.
A further thought: shopping trolleys are advertised in the media, but there have never to my knowledge been any complaints that those who advertise them must state prominently that it is unlawful for purchasers to pop their shopping into them without paying for them. Double standards, or a reflection on the fact that we assume that people know they shouldn't steal but are ignorant of copyright?
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