Rethinking the UK approach to private copying and format shifting
Will EC review of copyright exceptions mean a rethink for UK proposals to introduce a “limited” private copying exception by 2008 to cover “format shifting”?
In December 2006 the Gowers Review of Intellectual Property appeared to accept that widespread belief amongst consumers “that private copying of works between devices which they own is permissible”, of itself justified the introduction of a new exception to copyright “to make the law match the perception”.
“We do not believe that the present statutory exemptions from infringement of copyright are providing clarity or confidence for users or for the creative industries, particularly in relation to home copying”.
The Review therefore recommended that (by 2008) the UK introduce a limited private copying exception for format shifting with a rider that “there should be no accompanying levies for consumers”.
The exception potentially covered both sound recordings and films. It posed real challenges for development of alternative access for consumers in the form of online on-demand services. Concerns were raised by rights owners, and the UK Intellectual Property office was considering responses.
But the recently published EC Green Paper on Copyright in the Knowledge Economy1 has now raised questions over the lack of harmonisation over implementation of copyright exceptions in different EC Members States. This lack of harmonisation includes exceptions linked to private copying.
Rights owners must therefore ask whether the recognition in many EC members States of rights to collect levies to compensate rights owners for private copying of their works will therefore become unavoidable for the UK in taking forward the original Gowers recommendation?
From the rights owners’ perspective, any format shift exception must take into account the effect of both:-
the provisions of the Three Step Test2; and
Article 5(2) (b) of the EC Copyright Directive which provides that any “private copying” exceptions may apply ONLY;
“in respect of reproductions on any medium made by a natural person:-
for private use; and
for ends that are neither directly nor indirectly commercial
on the condition that the rights holders receive fair compensation which takes into account the application or non-application of technological measures … to the work or subject matter concerned”.
Before publication of the EC Green Paper the UK Intellectual Property Office consultation “Taking Forward the Gowers Review of intellectual Property” had suggested that, by relying on (debatable) interpretation of recitals in the EC Copyright Directive, a “narrow” exception might mean that prejudice to rights owners is minimal, and therefore no obligation for payment (comprising fair compensation) might arise. In other words individuals would be able to make “some” private copies without the need to compensate rights owners.
But to push this argument the UK was in danger of making a simple, if often ignored, rule that “private copying is not allowed without consent of rights owners” into a much more complex legal scenario.
The new rules might have covered:-
format shifting for copies that people have legitimately purchased
when they keep the original; and
when they only use the copies for their own private use; but
any “private copy” would not be able to be given away or shared more widely (for example in a file sharing system or on the internet).
The suggestion that private copies could not be retained if an individual was no longer in possession of original, was hardly conducive to encouraging legal transparency or an improved ability for rights owners to police use of their work.
So despite good intentions, the changes under debate in the UK were likely to make the legal situation more, rather than less, complex.
Against this “dilemma” the EC Green Paper now raises further questions over the extent to which the UK government can rely upon its interpretation of a “narrow exception” for format shifting meaning that relevant “fair compensation” for rights owners is nil, bearing in mind the way that this would diverge from a “harmonised approach” across the EU.
Answers and comments responding to the Green Paper have been requested by 30 November 2008.
For further information please contact Andrew Yeates or any member of the Film & TV team.
Issued August 2008.
- http://ec.europa.eu/internal_market/copyright/copyright-infso/copyright-infso_en.htm#greenpaper
The test provides
- exceptions shall be applied in certain special cases
- which do not conflict with the normal exploitation of the work or the subject matter; and
- do not unreasonably prejudice the legitimate interests of the right holder.