The SA iTunes Store and your rights

iTunes Store SA - Home page

Apple expanded the South African iTunes Store earlier this week with a fairly comprehensive music catalogue. The Store does not include TV series, movies and a meaningful bookstore. It also does not yet include a number of games and applications that are available in more complete stores like the US and UK stores.

The South African iTunes Store terms and conditions

The legal framework governing access to and use of the South African iTunes Store is the iTunes Store Terms and Conditions. These terms and conditions are an agreement between users and an iTunes company based in Luxembourg. They cover use of the iTunes Store, Mac App Store, App Store and the iBookstore. As with many terms and conditions of this nature, when you click on the “Agree” button (or something similar), you signify your agreement to these terms and conditions and to being bound by them.

The South African iTunes Store’s expansion to include music is a welcome development. Introducing this sort of on-demand access to content through legitimate channels is both something that consumers have wanted for some time and is likely to give consumers tempted by an authorised content downloads (for example, through bit torrent or USENET) and affordable and legitimate alternative. South Africans can now buy music from the iTunes Store on a per album or per track basis and at very reasonable prices. In many cases, the album is available for download through the store are cheaper than their physical equivalents available through conventional retail stores. To add to this, music available through the iTunes Store is not hampered by digital rights management in this means that you can freely move them between your devices (users are permitted to download content you purchase from the iTunes Store on up to 10 so-called “Associated Devices” subject to the limitation that no more than five of these devices are “iTunes-authorised computers”.

It’s important to note that when you buy music from the iTunes Store, whether it be the South African store any other iTunes Store, you do not assume ownership of that content at all. Instead, you are granted a licence to use this content for “personal, non-commercial use”. The terms and conditions include a number of “Usage Rules” which establish a series of parameters for your use of the “iTunes Products” which you have access to through the store. These include limitations on how many times you can burn an audio playlist (seven times) and a prohibition on being able to burn video iTunes Products or “tone iTunes Products”. That said, the Usage Rules contain an exemption for iTunes Plus Products from many of these restrictions and allow you to “copy, store, and burn iTunes Plus Products as reasonably necessary for personal, non-commercial use”. The distinction between ordinary iTunes Products and iTunes Plus Products may be somewhat academic as much of the iTunes music catalogue qualifies as iTunes Plus Products. These iTunes Plus Products don’t, as far as I’m aware, have any copy protection mechanisms built into them and your use of those products is pretty much limited to “personal, non-commercial use”.

What this means is that your rights to use the music are relatively broad provided you confine your uses to “personal, non-commercial use”. At the same time, a stark reminder that users are only granted a licence to use this content is the following clause in the intellectual property section of the terms and conditions:

Notwithstanding any other provision of this Agreement, iTunes and its licensors reserve the right to change, suspend, remove, or disable access to any iTunes Products, content, or other materials comprising a part of the iTunes Store at any time without notice. In no event will iTunes be liable for making these changes. iTunes may also impose limits on the use of or access to certain features or portions of the iTunes Store, in any case and without notice or liability.

What this effectively means is that iTunes or a licensors such as book publishers (when it comes to book sales through the iTunes Store, the licensor comes into being is directly between users and book publishers who have the ability to enforce their licences against the users directly) retain the ability to modify, suspend or even revoke your licence to use this content which you have paid for “at any time without notice”. In addition, iTunes also absolves itself from any liability flowing from these changes to your licenses. The reason for this is that our copyright law does not extend some of the personal use exceptions to copyright infringement we enjoy with literary works like books to music. This means that while you can copy a book for personal use (to a degree), you have no such right under our current law when it comes to music so it all comes down to the licenses you are granted by the rights holders like the music labels and publishers.

Another interesting aspect of these terms and conditions (which are really quite lengthy and you should read them) is that the iTunes Store is available for use by users who are between the ages of 13 and 18 although the terms and conditions do suggest that these users “review this Agreement with your parent or guardian to make sure that you and your parent or guardian understand it”. This particular provision recognises that minors have limited contractual capacity and their parents or guardians retain the right to terminate agreements that children enter into under certain conditions.

The elephant in the store

iTunes Store US - Books-2

The absence of TV series, movies and even books which are otherwise available through the Amazon Kindle store is likely largely due to licensing restrictions applicable to that content in some way or another. In the case of books, publishers often make use of fairly intricate and geographical licensing restrictions on which books may be sold when and in what formats. This doesn’t really make much sense where South Africans have had the ability to buy a wide range of commercially available books through the Kindle store for some time. What may be happening there is that the publishers are either negotiating their royalties with iTunes or are constrained by licences which they have already granted to parties in their local supply chain. At the moment, the books you can access through the South African iTunes Store comprise older works, many of which are probably no longer protected by copyright and/or otherwise in the public domain.

iTunes Store SA - Books

When it comes to TV series and movies, I imagine the licensing restrictions over that content from the studios may be somewhat more complicated. The fact that this content is not yet available through the South African iTunes Store may have much to do with licences granted to content distributors such as local movie theatres and our TV networks. These are likely to be licences between the studios and the local providers and licensing the content to iTunes would probably threaten the business models in use by the movie theatre chains and the TV networks. Reaching a point where the content is licensed to iTunes, locally, is almost certainly going to be a fairly complicated process involving business model changes, new licensing arrangements and quite a bit of attention focused on protecting existing TV and movie delivery services in South Africa. TechCentral has done some digging around and have been able to confirm that there are a series of exclusive license arrangements which are keeping TV series and movies out of the South African iTunes Store for the time being.

iTunes Store US - Home

You may have noticed that TV series are appearing pretty soon after their release internationally and movie release times have accelerated considerably, to the point where DVD versions of many movies are often available in South African stores before their digital equivalents are available for purchase on the iTunes Store internationally. The local entertainment industry is clearly experimenting with different distribution models and timings and while it is somewhat frustrating not to have a more complete iTunes Store experience in South Africa, these moves are encouraging for consumers who are looking for flexible options to purchase the content they want.

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