Adventures in Personal Copying (Part 1)

Yin Harn Lee

Did you think that adoption by the UK of an exception for private copying personal copies for private use [here] was the end of the story, so that everybody could finally live happily ever after?

Apparently this is not what happened. 

1709 Blog friend Yin Harn Lee (University of Sheffield) reports on her recent (mis-)adventures.

Here's what Yin Harn writes:

"Recently, I bought a DVD of the first season of the Sleepy Hollow TV series, which had been recommended to me for its diverse cast, its implausible yet convincingly executed premise, and the soulful eyes of its male lead Tom Mison. 

As I have a TV capable of reading USB memory devices, but no DVD player, it was my intention to rip the episodes onto a USB device so that I could view them comfortably on my TV. This was on the basis of the newly-enacted section 28B of the Copyright, Designs and Patents Act 1988 (‘CDPA’) which, since 1 October 2014, permits individuals to make personal copies of works (other than computer programs) that they have acquired lawfully and on a permanent basis for their own private use (see previous post here).

My intentions of enjoying Tom Mison’s face this exciting and fast-paced TV show in full 32-inch-screen glory were, however, stymied by what appeared to be a technological protection measure (‘TPM’) applied to the DVD, which prevented me from copying the episodes. 

Recalling that the newly-enacted personal copying exception in the CDPA also introduced several provisions permitting individuals to issue notices of complaint to the Secretary of State where they are prevented from making personal copies by restrictive measures applied by or on behalf of the copyright owner (see section 296ZEA of the CDPA), I took to the Internet to discover how such a complaint might be made. 

Typical eagerness to learn about
the intricacies of copyright law

This led to a discovery of a form on the IPO website, which requires complainants to provide, inter alia, details about themselves, the work concerned, and the copyright exception(s) which they are seeking to benefit from.

The section of the form that caught my eye first of all was Section 7, which states:

          “Details of your discussion with the rightholder(s)

“It is important that you have tried to reach a solution with the rightsholder(s). Please set out the steps you have taken to try to agree a solution with the rightholder(s).

“Include here any suggestions made by the rightsholder(s) and any reasons why the solution is not acceptable to you.

“Please enclose copies of relevant correspondence.”

I found this curious, as the relevant provision in the CDPA does not appear to impose on the individual seeking to benefit from the personal copying exception any obligation to reach a solution with the rightholder in relation to the TPMs that prevent that person from doing so. In fact, section 296ZEA(3) of the CDPA states that:

“Following receipt of a notice of complaint, the Secretary of State may give to the owner of that copyright work or an exclusive licensee such directions as appear to the Secretary of State to be requisite or expedient for the purpose of –

“(a) establishing whether any voluntary measure or agreement relevant to the copyright work subsists, or

“(b) (where it is established there is no subsisting voluntary measure or agreement) ensuring that the owner or exclusive licensee of that copyright work makes available to the complainant or the class of individuals represented by the complainant the means of benefiting from section 28B to the extent necessary to benefit from that section.”

Unwanted consequence
of trying to understand
UK private copying exception?

This seems to place the onus on the rightholder to establish whether such voluntary solutions do exist, and if not, to take steps necessary for ensuring that the complainant is able to benefit from the personal copying exception.

In fairness, it should be noted that section 296ZEA(5) of the CDPA does state:

“The Secretary of State may also give directions –

“(a) as to the form and manner in which a notice of complaint in subsection (2) may be delivered,

“(b) as to the form and manner in which evidence of any voluntary measure or agreement may be delivered, and

“(c) generally as to the procedure to be followed in relation to a complaint made under this section,

“and shall publish directions given under this subsection in such manner as the Secretary of State thinks will secure adequate publicity for them.”

However, while this gives the Secretary of State some discretion for determining the procedure for issuing a notice of complaint, it would seem not to go so far as to allow the onus of establishing the existence of voluntary solutions to be shifted to the individual, rather than the rightholder. There are also practical implications: individual users are unlikely to be in a position to negotiate effectively with rightholders, and may even have difficulty identifying the correct rightholder in the first place.

In my case, aware that Sleepy Hollow is produced by Twentieth Century Fox in the US, I have decided to get in touch with them via the contact form here to see if they are prepared to offer any solutions to my TPM woes. Suggestions as to the wording I should use would be very welcome."

1709 Blog readers: any suggestions that could lead to Adventures in Personal Copying (Part 2)?