Saturday 21 November 2015

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in October 2014, and which was effectively declared illegal by the High Court in July of this year, and so had to be withdrawn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.


Anonymous said...

"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,"

Interestingly, that wasn't Eleonora's take over at the IP Kat, where she wrote:

"It is worth recalling that the decision of Green J was motivated on grounds that UK Government had failed to provide adequate evidence to justify the lack of a fair compensation requirement/introduction of a levy system, not that lack of a fair compensation requirement would be per se inadmissible.

"Following this latest installment in the private copying world and the earlier decision in Copydan [Katposts here], it would appear that in principle there is not much that prevents a Member State from drafting a tight private copying exception that does not produce any actual harm, ie above de minimis pursuant to Recital 35 in the InfoSoc Directive, and - as such - does not envisage a fair compensation/levy system ... "

Do you have it actually from the Patent Office itself that they consider that Reprobel makes it impossible to go forward with such an approach ?

Or, as seems entirely likely, is it possible that they think that Reprobel creates such a nightmare for existing schemes that they now expect the entire legal landscape around such schemes to have to be addressed in the upcoming revisions to the European laws on copyright exceptions, so feel that in the medium term it is most appropriate to first wait and see what comes out of that process ?

Anonymous said...

Hi anonymous @21.35
I did discuss the matter with a member of the IPO staff following the Judicial Review in July, and at that point the intention was to conduct further consultation with the stakeholders like BASCA who had opposed the original Regulations, with a view to finding a method of accommodating their concerns. However this was one of several issues that the IPO was wrestling with - the repeal of s 52 and the aspiration to reduce duration of copyright in transitional cases (see s 76) of the Enterprise and Regulatory Reform Act 2013) being just two others - and I gained the impression that they were meeting resistance to the idea of a levy-free solution. Hence my comment about being unable to find a solution. I suspect that the decision not to proceed with the private copying exception had been made before the Reprobel decision was known. It just added a certain topicality to the IPO's decision.

me said...

It will just mean that the EU will in the not too distant future issue a directive authorising personal copies and backups WITHOUT compensation.

John Lockwood said...

If the law is an ass then the music/movie content owners and bodies are an arse of an ass. They will not be satisfied until they have a means of erasing peoples brains after their eyes and ears have 'copied' media.

While owners/creators of media clearly have a legal right to protection they completely out of sync with the real world and totally unwilling to accept the new digital world order on any terms. They are so hostile to their own legally paying customers that in many cases it is even impossible to buy their products legally.

Andres Guadamuz said...

Is there a link to the IPO's decision not to pursue the private copying exception by any chance? I can't seem to find it anywhere.

Anonymous said...

I can't supply a direct link, just this link to a posting by Pinsent Masons.

Andres Guadamuz said...

Thanks! I had seen that before, but was wondering if there had been an official notice that I had missed.