[The IPKat] BREAKING: CJEU rules in that the making available of copies of TV programmes saved in the cloud must be authorised by rights owner

From Eleonora Rosati writing on the IPKat

UPDATE HERE http://ipkitten.blogspot.co.uk/2017/11/the-vcast-decision-how-to-turn-private.html

Further to the Opinion of Advocate General (AG) Szpunar [here], this morning the Court of Justice of the European Union (CJEU) delivered its judgment in VCAST, C-265/16.

This was a reference for a preliminary ruling from the Turin Court of First Instance (Italy), seeking guidance on the application of the private copying exception within Article 5(2)(b) of the InfoSoc Directive to cloud-based video recording services. 

More specifically: does EU law prohibit a commercial undertaking from providing - without the authorisation of the relevant copyright owner - private individuals with cloud computing services for the remote video recording of private copies of works protected by copyright, by means of that commercial undertaking’s active involvement in the recording?

The AG provided a sophisticated response to this question, substantially concluding that the exception - while being applicable also in instances involving  the intervention of a party other than the direct beneficiary - requires in any case that the user/beneficiary has lawful access to the work that he/she copies.

The CJEU judgment - which is not yet available on the Curia website - seems to side with the AG's conclusions. However it appears that the CJEU judgment focuses more extensively on the analysis of the right of communication/making available to the public within Article 3 of the InfoSoc Directive than what the AG Opinion does.

According to the press release:

"By today’s judgment, the Court finds that the service provided by VCAST has a dual functionality, consisting in ensuring both the reproduction and the making available of protected works.

To the extent that the service offered by VCAST consists in the making available of protected works, it falls within communication to the public. In that regard, the Court recalls that, according to the directive, any communication to the public, including the making available of a protected work or subject-matter, requires the rightholder’s consent, given that the right of communication of works to the public should be understood, in a broad sense, as covering any transmission or retransmission of a work to the public by wire or wireless means, including broadcasting.

The Court takes the view that the original transmission made by the broadcasting organisation, on the one hand, and that made by VCAST, on the other, are made under specific technical conditions, using a different means of transmission for the protected works, and each is intended for its public. 

The Court concludes that the (re)transmission made by VCAST constitutes a communication to a different public from that of the original transmission and must therefore receive the consent ofthe copyright owner or holder of related rights. Accordingly, such a remote recording service cannot fall within the private copying exception."

A more detailed analysis will be provided as soon as the judgment becomes available: stay tuned!

One Year on, the Private Copying Exception is now Dead

Following the CJEU's decision in the Reprobel case (reported here and here), it is perhaps not surprising that the UK Intellectual Property Office has announced that it is to abandon the UK's private-copying exception which was introduced in October 2014, and which was effectively declared illegal by the High Court in July of this year, and so had to be withdrawn. 

For the background to Mr Justice Green's decision in July's Judicial Review, please see this blog post. It now seems clear that the IPO were never going to find a workable scheme which met the criterion of 'fair compensation' for rights holders demanded by the EU InfoSoc Directive, while at the same time avoiding unpopular levies on consumables and hardware capable of being used to copy, in particular, music, computer games, ebooks and films, for personal use.

The Reprobel decision, although not specifically concerned with copying for private use, highlights just how complicated the levy system can become. Each EU member state has found its own way of tackling the issue, with no overall EU-wide harmonisation in prospect. It seems that the IPO and those representing rights owners could not find an existing model to achieve 'fair compensation'.

So where does this leave ordinary users in the UK? Clearly some will have been unaware of the introduction of the exception last year, and possibly a larger minority will have been unaware of the rescinding of the exception, so they will no doubt continue to format shift their personally owned music and store tracks on the cloud in blissful ignorance that that is not legal in most cases. Then there is the grey area of the legality of copies made while the exception was in force. Those users who are aware of the changes face a difficult decision: whether to make copies for personal use in contravention of the law in the reasonably sure knowledge that they won't get caught, or abide by the law and deny themselves a degree of sensible flexibility in their viewing and listening choices. One thing they will not do is go out and buy a digital replacement such as a download, for a CD or DVD they already own.

The decision not go ahead with the private copying exception will also have implications for other parts of the music distribution industry. Operators of cloud services may face pressure to amend their terms of service to reflect the new status quo, and some streaming services may be forced to tighten up their procedures to prevent users from creating multiple copies of the same download. But what also seems clear is that the music industry has won a Pyrrhic victory since whether or not it is illegal, many users will continue to make private copies of their legally owned music etc, just as they used to do in the pre-digital age. No doubt the BPI and its members will complain that they will lose revenue through this behaviour but I think it is fair to say that they will, privately, continue with their old policy of not seeking to sue or prosecute anyone for personal format shifting. To do otherwise would undoubtedly alienate the buying public and strengthen the argument that the record labels are out of touch with what music fans want. It remains to be seen how organisations such as the Featured Artists Coalition and the collecting societies will react to this latest development. Arguably it was the artists who stood to gain from the imposition of a levy on consumables etc, but even they would no doubt acknowledge that a blanket system is neither fair to consumers, in that much copying is of non-copyright material, nor does it result in a fair distribution of the proceeds to the artists and authors of the works, since there is no way to monitor which actual works have been copied.

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)?

Fair compensation for private copying: another EGEDA reference

EGEDA is no stranger to this weblog, having featured in this post on Case C-387/09 Entidad de Gestión de Derechos de los Productores Audiovisuales (EGEDA) v Magnatrading S.L., a private copying "fair compensation" reference for a preliminary ruling from the Spanish Juzgado Mercantil that was lodged on 1 October 2009 and resolved by a brief Order just over a year later.  Another EGEDA "fair compensation" reference is in the air, as a media release from the UK Intellectual Property Office tells us:

CJ case: C-470/14: EGEDA and others

We have received notification of a new case referred to the Court of Justice of the European Union (CJEU): C-470/14: A reference from the Spanish Court concerning its domestic scheme for the payment of fair compensation for private copying.

The questions referred to the Court of Justice (CJ) for a preliminary ruling are:

1. Is a scheme for fair compensation for private copying compatible with Article 5(2)(b) of Directive 2001/29/EC where the scheme, taking as a basis an estimate of the harm actually caused, is financed from state resources, and the cost of compensation is therefore not borne by the users of those private copies?

2. If yes, is the scheme compatible with that provision where the total amount allocated via state resources to fair compensation for private copying has to be set within budgetary limits established for each financial year?

This case and the questions referred to the Court can also be viewed on our website at:

https://www.gov.uk/government/publications/references-to-the-european-court-of-justice/references-to-the-european-court-of-justice-2014

If you would like to comment on this case please e-mail policy@ipo.gov.uk by 01 December 2014.

The media release adds the following information:

We understand how difficult it is to provide detailed comments in the time available. The IPO has tight time limits in which to consider and provide advice to ministers on CJ cases. In order to help us provide the right advice, we just need a short email by the deadline stating whether you think the UK should intervene and some general points about how you think we should answer the questions.

You are welcome to follow this email up with more detailed comments after the deadline, which can be taken into consideration if we have chosen to submit observations or if we decide to attend a hearing.

If you are aware of any references to the Court of Justice that are not currently included on our website, you are also welcome to send us your views. If you choose to do this, please include clear information about the case to help us to identify it.

Further information on intellectual property CJ cases can be found on our website https://www.gov.uk/government/publications/references-to-the-european-court-of-justice.

The CopyKat - JCSI points to potential the illegality of a new UK copyright exception

The Shanghai Daily reports that the license of 'value-added' telecom service run by the Chinese video sharing site QVOD has been revoked by the Guangdong Provincial Telecommunications Administration over copyright infringement concerns. Shenzhen QVOD Technology Co., Ltd. can no longer be engaged in telecommunication services after the withdrawal of its license, the Administration confirmed. According to the Administration, QVOD has violated regulations of telecom service management. The company was informed of an administrative penalty - a rather large fine of 260 million yuan ($41.6 million U.S. dollars). 

The Second Circuit appellate court in the USA has ruled that architectural works cannot always be neatly categorized as compilations of unoriginal material, criticising the 2008 decision by the Eleventh Circuit in Intervest Construction, Inc. v. Canterbury Estate Homes, Inc - saying that decision was "overly simplistic", explaining that not all architectural works consist solely of unoriginal elements. "Some architectural designs, like that of a single-room log cabin, will consist solely of standard features arranged in standard ways; others, like the Guggenheim, will include standard features, but also present something entirely new. Architecture, in this regard, is like every art form."  The real issue, the Second Circuit explained, is to determine what elements of an architectural work are original and therefore protectable, versus what elements are standard and thus not protectable.  Zalewski v. Cicero Builder Developer, Inc 2014 WL 2521388, at *5 (2d Cir. June 5, 2014). More on Mondaq here.

Just days after they went on sale in the UK, Google Glass has been banned from two cinema chains who have screens across the country. Vue cinema chain and the Cinema Exhibitors' Association have both said the gadget cannot be worn during screenings, following cinema chains in the US, who have also banned the use of Glass over fears of copyright infringement being committed by customers using Glass’ forward-facing video camera to record newly released films. Image: Google.

Dr. Monica Horten, a writer, policy analyst and visiting fellow at the LSE, looks at "copyright liability for cloud computing services hovering on the EU horizon" and asks what we can learn from the case of ABC Inc v Aereo in the United States Supreme Court  - over on the LSE Media Policy Project blog in a piece headed "Copyright Liabilities Loom for Cloud Providers in Wake of Aereo Judgement". 


Hackers in Argentina (or well, I suppose they could be anywhere so I am guessing) have taken direct action after The Pirate Bay was blocked in Argentina - the first Latin American country to remove the site on the grounds of copyright infringement. Hackers  managed to replace the website of Argentinean music industry trade body CAPIF (who led the legal action to instigate the block) with a proxy to access The Pirate Bay which remained in place for some ten hours.

Not Katy Perry - but Roald Dahl's "Witches"

A group of Christian hip-hop musicians headed up by rapper Flame are suing pop singer Katy Perry and her record label in federal court in St. Louis, Michigan, claiming that the 2013 hit song "Dark Horse" infringes on their copyright of a 2008 song "Joyful Noise." That song appeared on an album that was nominated for a Grammy for best rock or rap gospel album and the claimants say "By any measure, the devoutly religious message of 'Joyful Noise' has been irreparably tarnished by its association with the witchcraft, paganism, black magic, and Illuminati imagery evoked by the same music in 'Dark Horse' ". 

In the wake of the leak of the European Commission’s White Paper on copyright policy come two articles looking at what should be done to modernise Europe's copyright regime: The first says "Achieving a modern copyright regime that is apt for a digitally connected continent requires a strategic vision" ...... and suggests that a strategic vision should include a proper balance in the copyright framework. Creativity must be incentivised and rewarded without, however, undermining legitimate interests of users and the broader development of a thriving digital economy in Europe". This article is by Jakob Kucharczyk, Director in the Brussels office of the Computer & Communications Industry Association, and is on Disco - the Disruptive Competition Project - and is well worth a read. And TechDirt have this take "EU Publishers Present Their 'Vision' For Copyright: A Permission-Based Internet Where Licensing Is Required For Everything" which can be found here.

And in the UK doubt has been raised about the UK government's power to introduce a new private copying exception to copyright without an associated mechanism for compensating rights holders. In a rather rare move* The Joint Committee on Statutory Instruments (JCSI) said it was unclear whether the introduction of a new private copying right without a mechanism for ensuring rights holders receive "fair compensation" could be permitted under European law saying "if they [the exception] are approved and made, there will be a doubt whether they are intra vires and in particular the Committee's attention had been drawn in particular to the CJEU's judgment in case C-467/08 Padawan in which the Court held that 'fair compensation', within the meaning of Article 5(2)(b) of the Copyright Directive (2001/29/EC), is an autonomous concept of European Union law which must be interpreted uniformly in all the Member States that have introduced a private copying exception; that Member States which decide to introduce the private copying exception into their national law are required to provide for the payment of 'fair compensation' to righstholders. The always readable Out-law.com has a good take on this here http://www.out-

law.com/en/articles/2014/july/doubt-cast-over-proposed-uk-laws-on-private-copying/ asking if this exception could end up being tested in the CJEU to determine the legitimacy of the UK's plans for the new private copying right. It's quite understandable that key elements in the music industry - in particular the record labels, music publishers and the sector collection societies will push for fair compensation to be included - or the exception scrapped so this one may run - although I for one will be looking for my own "fair compensation" - back from those very same labels and publishers - for all of those copyright payments I have made over the years for now obsolete formats like mini-disc, betamax,  VHS, cassette tapes and laser discs. The House of Commons will debate the proposed exceptions including private copying on the 9th July according to an IPO tweet (below).

*I am reliably informed that the fact that the JCSI has reported on the SI is very unusual. I understand that this is only the 7th time an affirmative SI has been reported by the JCSI during this Parliament (ie since May 2010). And it is the 3rd time of the 7 that the report is for doubtful vires. So, third time in four years. Quite a historic event generally and this could be seen as very historic in copyright law history!

Private copying of unlawful reproductions: CJEU says "no!"

This morning the Court of Justice of the European Union gave judgment in Case C-435/12 ACI Adam BV and Others v Stichting de Thuiskopie, Stichting Onderhandelingen Thuiskopie vergoeding. The judgment is so far available in just five official languages of the European Union, none of which this blogger can handle, so he reproduces the Curia press release for your edification here:

"The amount of the levy payable for making private copies of a protected work may not take unlawful reproductions into account 

The fact that no applicable technological measure to combat the making of unlawful private copies exists is not capable of calling that finding into question

The Copyright Directive [ie Directive 2001/29 on the harmonisation of certain aspects of copyright and related rights in the information society] permits Member States to lay down an exception to the exclusive reproduction right of holders of copyright and related rights so that private copies may be made (the private copying exception). It also provides that Member States which decide to introduce such an exception into their national law are required to provide for the payment of ‘fair compensation’ to copyright holders in order to compensate them adequately for the use of their protected works or other subject-matter.

ACI Adam and Others are importers and/or manufacturers of blank data media such as CDs and CD-Rs. Under Netherlands law, those companies are required to pay a private copying levy to a foundation, Stichting de Thuiskopie. The amount of that levy is determined by another foundation, ‘SONT’.

ACI Adam and Others take the view that, when determining the amount of the levy, SONT should not have taken into account the harm which may be suffered by copyright holders as a result of copies made from unlawful sources.

Against that background, the Hoge Raad der Nederlanden (Supreme Court of the Netherlands) decided to seek a preliminary ruling from the Court of Justice.

In its judgment delivered today, the Court points out that if Member States were free to adopt legislation permitting, inter alia, reproductions for private use to be made from an unlawful source, the result of that would clearly be detrimental to the proper functioning of the internal market [not sure about this: the whole point of copies for private use is, or at any rate was, the fact that each such copy had no impact on the market at all. If this is so, then it's difficult to see how consideration of the liability of an individual for making a private copy of an unauthorised, rather than a lawful, work would affect the functioning of any market, anywhere. Can someone please explain?].

Similarly, the objective of proper support for the dissemination of culture may not be achieved by sacrificing strict protection of copyright or by tolerating illegal forms of distribution of counterfeited or pirated works [but the toleration of the making by an individual of a copy for private purposes is not to be equated with the making or distribution of counterfeit or pirate works by commercial infringers].

Consequently, the Court holds that national legislation which makes no distinction between private copies made from lawful sources and those made from counterfeited or pirated sources cannot be tolerated.

First, to accept that such private reproductions may be made from an unlawful source would encourage the circulation of counterfeited or pirated works, which would inevitably reduce the volume of sales or of lawful transactions relating to the protected works and would consequently have an adverse effect on normal exploitation of those works [Why? The person making money from distributing and selling fakes doesn't isn't going to be more enriched, is he, when someone makes a private copy of "his" work than when it's made of the legimate copyright owner's?]. Secondly, the application of such national legislation may unreasonably prejudice copyright holders.

Furthermore, the Court states that it is for the Member State which has authorised the making of private copies to ensure the proper application thereof and to restrict acts which are not authorised by the rightholders.

National legislation which does not distinguish between lawful and unlawful private reproductions is not capable of ensuring a proper application of the private copying exception. The fact that no applicable technological measure exists to combat the making of unlawful private copies is not capable of calling that finding into question.

Furthermore, the levy system must ensure that a fair balance is maintained between the rights and interests of authors (as the recipients of the fair compensation) and those of users of protected subject-matter.

A private copying levy system, which does not, as regards the calculation of the fair compensation payable to its recipients, distinguish between the lawful or unlawful nature of the source from which a private reproduction has been made, does not respect that fair balance.

Under such a system, the harm caused, and therefore the amount of the fair compensation payable to the recipients, is calculated, according to the Court, on the basis of the criterion of the harm caused to authors both by private reproductions which are made from a lawful source and by reproductions made from an unlawful source. The sum thus calculated is then, ultimately, passed on in the price paid by users of protected subject-matter at the time when equipment, devices and media which make it possible to create private copies are made available to them.

Thus, all users are indirectly penalised since they necessarily contribute towards the compensation payable for the harm caused by private reproductions made from an unlawful source. Users consequently find themselves required to bear an additional, non-negligible cost in order to be able to make private copies".

There seems to be an awful lot of assertion here; this blogger looks forward to reading the full judgment in order to find out how much of it is based on anything more substantial.

Eleonora has posted a "breaking news" item on the IPKat blog here, but promises more to come once she has digested the ruling in full. We await her further thoughts with excitement.

Private copying exception should apply only to copies made from lawful sources

As announced by the IPKat, this morning Advocate General (AG) Cruz Villalón released his much awaited Opinion in Case C-435/12 ACI Adam [on which see here], a very interesting reference for a preliminary ruling from The Netherlands seeking clarification as to interpretation of the exception or limitation for private copying, pursuant to Article 5(2)(b) of the InfoSoc Directive.

Among other things, the AG advised the Court to rule that Article 5(2)(b) must be interpreted as meaning that the private copying exception only applies to reproductions of works or other subject-matter protected by copyright and related rights made ​​from legitimate sources.

The Opinion is not yet available in English. As soon as further translations are made available on the Curia website, The 1709 Blog will provide a more detailed analysis of its content.

Katpoll on UsedSoft and a question: is the UK legitimising second-hand marketplaces via private copying?

The Katpoll on Case C-128/11 UsedSoft v Oracle is now closed (background here). The IPKat and this blogger wish to thank the 107 readers who answered the following question:

IS THE CJEU LIKELY TO EXTEND THE USEDSOFT RULING TO WORKS OTHER THAN SOFTWARE?

A broad majority (57% - 61 votes) thinks that, yes, when given the opportunity to address this issue the Court of Justice of the European Union (CJEU) will say that exhaustion of the right of distribution as per Article 4(2) of Directive 2001/29 (the InfoSoc Directive) encompasses both tangible and intangible copies.

A tiny fraction (27% - 29 votes) of readers believes that the ruling in UsedSoft will not be extended to intangible copies of works other than software.

Finally, 17 voters (15%) feel that the answer will really depend on whether the CJEU approves of the IP owner's conduct.

This blogger's original post on the IPKat also attracted a few comments. One of them was particularly interesting, as an anonymous reader suggested that "If you vote "no" here then you need to reply to the UK IPO drafting consultation regarding private copying before the 17 July, as the proposed wording is designed to import UsedSoft into the rest of copyright."

As UK-based readers will probably know, following HM Government's announcement last December, a few weeks ago the UK Intellectual Property Office (IPO) published draft secondary legislation for technical review on some proposed exceptions to copyright (see here and here).

Among other things, the IPO has included a new draft exception on private copying (this is an exception that the UK did not adopt when it transposed the InfoSoc Directive into national law).

It is proposed that new Section 28B of the UK Copyright, Designs and Patents Act 1988 (CDPA) reads as follows:

Things will change, as the UK is
introducing a specific exception

(1) Copyright is not infringed where an individual uses a copy of a copyright work lawfully acquired by him to make a further copy of that work provided that: 

(a) the further copy is made for that individual’s private use for ends that are neither directly nor indirectly commercial;

(b) the copy from which the further copy is made is held by the individual on a permanent basis (for example it is not a copy that is rented to the individual for a specified period or borrowed from a library); and 

[(c)the making of the further copy does not involve the circumvention of effective technological measures applied to the copy from which it is made.] 

(2) Copyright is infringed where an individual who has made a further copy of a copyright work pursuant to subsection (1): 

(a) permanently transfers the copy to another person; or 

(b) permanently transfers the copy from which it is made without destroying the 

further copy and the further copy shall in those circumstances be treated as an infringing copy. [This echoes the UsedSoft ruling, in particular paras 70 ff]

(3) Nothing in subsection (2) prevents an individual from storing a further copy made pursuant to subsection (1) in an electronic storage facility accessed by means of the internet or similar means, where that facility is provided for his sole private use. [This is intended to allow storage in the cloud]

(4) To the extent that the term of any contract purports to restrict or prevent the doing of any act which would otherwise be permitted by this section, that term is unenforceable.”.

How could you ever think
of reselling his songs?

According to the IPO, the proposed private copying exception "would allow people to copy a CD from their music collection onto their mp3 player or phone. However it would not allow them to make [further] copies of their CDs and give them to other people." 

But can the same be said also with regard to original (not "further") copies?

Current wording of Section 28A(2)(b) appears to be such as to allow an individual to make a further copy (for non-commercial ends) of a work and then transfer the original copy to another person, provided that he/she destroys the duplicate. 

To some extent, this might legitimise the model proposed by pre-owned digital marketplaces like ReDigi, with the difference that the latter

(1) is all about "original" (not "further") copies, and
(2) requires the original (not the "further") copy to be erased.

As discussed in earlier posts (here) ReDigi, which was launched in 2011, is based on the possibility for users to sell their own music library and/or buy pre-owned music. ReDigi takes a small cut from every transaction made on its site. Songs sell for an average of about 60 cents, compared with a typical 99 cents on iTunes. First-time users are requested to download proprietary software, which verifies if a file was bought legally. If the song checks out, it is then erased from the seller's hard drive and uploaded to ReDigi's computer servers. This system is said to prevent sellers from reinstalling a sold song to their computer, and offers users the chance to check their libraries for illegal music.

A few months ago, a US court held ReDigi liable of copyright infringement and - among other things - denied applicability of the first sale doctrine (the US equivalent to the principle of exhaustion), in that "the first sale defense is limited to material items, like records, that the copyright owner put into the stream of commerce."(1709 Blog report here, ReDigi CEO interview here).

As mentioned, to fall within the proposed UK private copying exception, it is required that “the further copy is made for that individual’s private use for ends that are neither directly nor indirectly commercial.” However, what draft Section 28A(2)(b) appears to legitimise is the transfer of the original copy (ie the iTunes song), and commercial/non-commercial considerations might be intended to encompass solely the "further copy".

If the above proved correct, then the UK would legitimise second-hand digital marketplaces via copyright exceptions (private copying), rather than exclusive rights and the principle of exhaustion.

Parody, Pastiche, Private copying: UKIPO's "three-P suite"

Never willing to let this blogger catch up with his perennial backlog of unanswered emails, the UK Intellectual Property Office has just sent him a really interesting one, since it deals with two of his favourite creative phenomena - pastiche and parody.  The email was a media release -- and it runs like this:

The Intellectual Property Office (IPO) has today published reports entitled "Parody and Pastiche" and "Private Copying". 

 "Parody and Pastiche" focuses on the economic, cultural and legal effects of parody and helped inform the development of impact assessments on copyright exceptions and the introduction of the ERR bill [that's the Enterprise and Regulatory Reform Bill, here.  Can you imagine any bill in the acronym-conscious United States being allowed to go through both Houses with the word "err" at its helm?]. 

 "Private Copying" was commissioned to collect data on how four copyright industries have adopted private copying measures and whether the cost of the product reflects a right to copy privately. 

 Link to the IPO research page/latest publications: http://www.ipo.gov.uk/pro-ipresearch.htm?debugdate=15.03.13&debugtime=9:30   

1. Evaluating the impact of parody on the exploitation of copyright works: Report 1 (1.06Mb)
http://www.ipo.gov.uk/ipresearch-parody-report1-150313.pdf?debugdate=15.03.13&debugtime=9:30   

2. The Treatment of Parodies Under Copyright Law in Seven Jurisdictions: Report 2 (2.52Mb)
http://www.ipo.gov.uk/ipresearch-parody-report2-150313.pdf?debugdate=15.03.13&debugtime=9:30   

3. Copyright and the Economic Effects of Parody: Report 3 (638Kb)
http://www.ipo.gov.uk/ipresearch-parody-report3-150313.pdf?debugdate=15.03.13&debugtime=9:30   

4. Private copying (420Kb)
http://www.ipo.gov.uk/ipresearch-private-150313.pdf?debugdate=15.03.13&debugtime=9:30

 This blogger has not yet had time to open any of these documents and taste their contents, but it seemed a good idea to spread the word to 1709 Blog readers that they are available. It looks as though, prima facie, empirical and evidence-based research is here to stay. 

Hargreaves questions limits for private copying

Whilst we are focussing on levies in the European sphere, I noticed an interesting interview with Ian Hargreaves who authored the May 2011 Review of the UK's intellectual property framework which is now, to an extent, being actioned by the UK Government. 

During the interview, in the ever excellent Out-Law, Hargreaves questions whether the Government's plans to enable individuals to make private copies of copyrighted material go far enough, saying that whilst he was broadly supportive of the way the Government intends to act on the recommendations he made in his Report,  it’s plans in relation to a new private copying exception could have been more ambitious. Professor Hargreaves says that he agrees with the Government's view that a new levy system would not have to be introduced to account for a new private copying right for consumers, saying “I think that it is very difficult to argue that a levy is owing to compensate for the making lawful a practice that is already ubiquitous" Hargreaves said. "I think the Government is right not to go for a levy" adding "the case for a levy arguably does increase the more latitude you give [the exception]. If we were in a situation where we could adjust the fine detail of the way that some of these rules and practices work I think we’d be in a better situation, but we’re not. [Copyright law] is not a flexible and adaptable system,"

Hargreaves adds "The shortcoming of the new arrangement will be that it will still feel intuitively incorrect to a lot of people – I can’t transfer something from my wife’s iPod that I gave her for her birthday. We transfer the MP3 file into the car player – who owns the car? You can tie yourself in knots. I don’t want to exaggerate that but if the goal is to have something which corresponds to the way that the technology is already encouraging people to behave it is desirable that the law is as close to what consumers find sensible and rational as possible”.

It’s an interesting read – more here and here on Out-Law 
http://www.out-law.com/