The draft private copying exception (PDF) released for consultation on 7 June 2013 is one of the UK Intellectual Property Office’s flagship copyright reforms following the Hargreaves Review. In his final report (PDF) in May 2011 Professor Ian Hargreaves focused on the lack of a format-shifting exception as particularly threatening to the legitimacy of copyright. He identified:
It has to succeed on several fronts. The audience for many aspects of copyright is copyright professionals. However, since the private copying exception will determine what everyday users of PCs, laptops, tablets and mobile devices can and cannot do with music and movies that they purchase, its audience is the general public.
As such the exception needs to be clear, certain and sensible. For clarity, it should not require special expertise in copyright law to understand the exception and its practical implications. For certainty, there should be as few as possible areas of doubt about what is and is not permitted. As to being sensible, there should be a minimum of arbitrary distinctions. Not only should the user be able readily to understand which particular activities fall on one or other side of the line, but the reasons why the line is drawn where it is should be coherent and readily apparent. In general terms the boundaries should accord with the reasonable expectations of users, albeit it must be conceded that there are legitimate areas of disagreement as to where the boundaries should lie.
If the exception does not pass these tests, not only will an opportunity to set copyright back on the road to legitimacy have been lost, but further damage to copyright will be done as another specimen of obscurity, arbitrariness and remoteness from reality is added to the list. In an age when policymakers demand that users should be exhorted to respect copyright, it behoves our legislators to write laws that those users can readily understand and which, when they have understood them, make sense.
[Remember that none of this applies to computer programs and the source material cannot itself have been made under an exception from copyright.]
- making a copy as a back-up copy
- making a copy for the purposes of format-shifting
- making a copy for the purposes of storage (including in an electronic storage area accessed by means of the internet or similar means which is accessible only by the individual (and the person responsible for the storage area).]
Here are some sub-scenarios:
OK. That would be consistent with Bruce’s professed private use purpose.
Probably not OK. Since it is accessible by members of the public Bruce would have an uphill task convincing anyone that the copy was made for his private use.
If Bruce did this with so as to enable others on his home network to make their own permanent copies, that is beyond Bruce’s own private use and would not be legitimised by 28B. [No change. Although Bruce will be able to 'daisy-chain' (see below) only he will be able to make further personal copies.]
If Bruce did it so as to enable others on his home network independently to play and listen to the tracks in the folder, that is probably not legitimised by 28B, since their playing and listening to the tracks would be private use by them, but not by Bruce.
If Bruce did it with the intention only of listening to the tracks himself, that might be OK since that is Bruce's own private use. However Bruce could be challenged as to why, if that was his intention, he put the tracks in a folder accessible to others.
Establishing Bruce’s true intention could be very difficult. It might depend at least partly on his technical sophistication, such as whether he knew that others could access the folder to which he copied the CD. That might be especially the case if some other member of the family set up the network and configured his computer.
Unclear. If Bruce intended to listen through personal headphones that would clearly be his private use. Playing the tracks through his home loudspeakers means that other domestic and family members can listen to the music that Bruce is playing. Is this also Bruce’s private use?
The concept of private use as understood in EU law is wide enough to cover domestic and family use. Is that what 28B means? If so does the fact that the playing is under Bruce’s control mean that it counts as Bruce’s private use, as required by 28B? 28B itself offers no illumination, other than that using the word 'private' rather than 'personal' use may suggest that this is OK. (Confusingly however, the IPO uses the term 'personal use' in its commentary on the draft exception).
If it is not OK, then the reasonable user could well regard the results as arbitrary. It would be permissible to buy a CD and play it to friends and family on a music system at home; but not permissible to copy the CD to a computer or an MP3 player and play that copy to the same audience through the same music system.
[No change. None of the supporting documents or the Impact Assessment shed definitive light on this scenario, although the tenor of the rejected Impact Assessment Option 2 may suggest that the answer is 'Not OK'.]
Assuming this to be the government's intention, it would be better if 28B made completely clear that daisy chaining is permitted. [Clarified. Bruce can make a personal copy under 28B from an existing personal copy that Bruce (but no-one else) has already made under 28B.]
If Bruce intends to use the portable device to play the tracks in the presence of others in his private sphere, such as in his car (the example given by Hargreaves), then the same uncertainties about private use arise as with the hard drive copy. [No change.]
If Bruce does not destroy the further copy, then selling the USB stick by public sale is an infringement and, as in (j) above, the further copy will be treated as an infringing copy. That is clear.