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Digital player maker 'incited consumers to break the law', says ASA

Ads for hard-drive CD player must not encourage copying, rules regulator

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A company must change the way it advertises its digital music player because the ads encourage people to copy music in a way that breached copyright law, the advertising industry regulator has said.

The Advertising Standards Authority (ASA) has told 3GA Ltd to find a new way to advertise the Brennan JB7 machine, which is a CD player with a hard disk. The machine records CDs, cassettes or records on to its hard disk, which the company claims can hold up to 5,000 albums.

Adverts misleadingly imply that it is acceptable to copy music from discs and tapes on to the machine, the ASA said.

"It saves space and clutter and delivers near immediate access to an entire music collection," said the national press ad in question. "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."

A complaint was made to the ASA that the advertising incited people to break the law because copying music without permission was a breach of copyright law. The ASA agreed and said that the advert should be changed.

"3GA said [that] ... 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," said the ASA ruling.

"They said the JB7 was different to, for example, a cassette or CD recorder that was used to make physical copies of the work," said the ruling. "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."

The ASA said that the adverts had the potential to mislead consumers with regard to copyright law.

"[The advert] 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," said the ASA ruling. "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," it said. "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 ASA told 3GA to stop advertising its machine in this way and "to ensure future ads for such products prominently stated that it was unlawful to copy material without the permission of the copyright owner".

See the ruling here.

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OUT-LAW.COM is part of international law firm Pinsent Masons.

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