Britain’s other new copyright law

The UK is currently putting in place two new copyright laws. One of them is causing quite a stir, crippling the nation with Twitter RSI. The other, The Copyright (Permitted Acts) (Amendment) Regulations 2010, has attracted less attention. One law offers the macho spectacle of file-sharers being throttled or terminated; the other is more merciful, bringing in new copyright exceptions.

The Copyright (Permitted Acts) (Amendment) Regulations 2010 are the end result of a lengthy consultative process. Back in 2006 the Gowers Review proposed seventeen changes to copyright law. One recommendation addressed piracy legislation but ten advocated new exceptions. Half of these are implemented by the Regulations, which are to be found in draft in the consultation document Taking Forward the Gowers Review of Intellectual Property: Second Stage Consultation on Copyright Exceptions, published in December with a closing date for responses at the end of this month.

The lack of public controversy surrounding the Regulations may, in part, be because they don’t affect very many of us in a big way – unless you happen to be a media studies student that is. Mostly they offer copyright exceptions when copying film and music for academic purposes. Students get a fair-dealing exception when using sound recordings, films and broadcasts in research. Schools and colleges can record clips of film and music, and transmit them and recorded broadcasts to distance learners. Libraries and museums can make copies of films, sound recordings and artistic works for preservation purposes. Here’s a summary.

The striking thing about the Regs is not so much what they cover as what they don’t. Of the exceptions that Gowers proposed two of the sexiest are missing: parody and format-shifting. Why didn’t they make it?

Parody, Caricature and Pastiche

Comic works that play on existing copyright works may infringe copyright unless they are only loosely based on the original or constitute fair dealing for criticism or news reporting. The consultation document says that there was a lack of concrete evidence, social or economic, in favour of creating a new exception though there was evidence against it. For example, music synchronization licensing accounts for up to 15% of music publishing income. Other problems with introducing an exception included drawing the line between parody and plagiarism (e.g. photographic parody), and infringement of moral rights.

Format-shifting

It is currently illegal to copy music and films from one format to another (e.g. CD to MP3). Though a format-shifting exception seems like a no-brainer to most people, it presents a number of difficulties. It might make the law even more complex (e.g. copies would need to be destroyed if originals were sold; not all content could be format-shifted due to DRM). There are questions over what types of works it should apply to; whether if should be for personal use only or for family and friends; should it apply to works published before the introduction of an exception? But though these are debatable points, the sticking point is money. Should the right owner receive some compensation for format-shifting, probably in the form of a levy on copying equipment?

The Government appears to believe that there would be no need for rightsholders to be compensated for format-shifting. They argue that this satisfies the ‘fair compensation’ requirement of the Infosoc Directive and is compatible with the the Berne three-step test, arguing that format-shifting does not conflict with normal exploitation. Rightsholders would disagree: selling content in different formats is the most normal thing in the world. For example, when CDs came in people went out and bought their vinyl collections all over again.

Nevertheless, the Government would like to wait for European copyright law to introduce a broader exception for non-commercial use (perhaps covering format-shifting, mash-ups and sharing with friends). Just legalizing format-shifting, they say, would be a half-baked measure when people go on to manipulate and share content. Furthermore, the Government does not dispute that a broader exception would require compensation, so they are hoping to avoid the negative response they would receive from creative industries by introducing a stand-alone gratis format-shifting exception.

However, a non-commercial exception for sharing legitimately purchased content with family and friends looks tricky: how do you know whether content that is being shared has originally been bought or pirated? Who are ‘friends’? Is sharing on an ad-supported site non-commercial? As for mash-ups, the EU consultation Copyright in the Knowledge Economy has led the Commission only in October of last year to say in a communication that it is too early to bring in an exception for non-commercial transformative use. It may be some time before the EU bring in a general non-commercial exception.

In the meantime, given that most people don’t even know that format-shifting is illegal and nobody is being sued for it, people should just carry on infringing...