[Originally published 16 July 2013, based on the draft circulated for technical review. Updated 14 April 2014 to take account of the amendments contained in the draft Personal Copies for Private Use Regulations laid before Parliament on 27 March 2014.]
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:
“a growing mismatch between what is allowed under copyright
exceptions, and the reasonable expectations and behaviour of most people.
Digital technology has enabled use and reuse of material by private individuals
in ways that they do not feel are wrong – such as sharing music tracks with
immediate family members, or transferring a track from a CD to play in the car.
It is difficult for anyone to understand why it is legal to lend a friend a
book, but not a digital music file. The picture is confused by the way some
online content is now sold with permissions to format shift (iTunes tracks) or
to “lend” files (Amazon ebooks) at no extra cost. This puts the law into confusion and
disrepute. It is not a tenable state of affairs.”
If respect
for copyright is to be restored, the proposed new private copying exception has to shoulder
much of the work.
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.
This article
evaluates the published draft of the exception [now the draft Statutory Instrument laid before Parliament] with those criteria in
mind. We invoke a hypothetical user,
Bruce, and try to decide which of his everyday format-shifting activities would
or would not be permitted by the proposed new S28B of the 1988 Copyright Designs
and Patents Act.
For the most
part the article avoids hotly contested issues about how broad or narrow the
exception should be, whether its implementation without a corresponding copyright
levy is or is not compliant with the EU Copyright Directive, and whether the
whole thing is undermined anyway by the prohibition on circumvention of technical
measures.
The reader
can make up his or her own mind whether the draft exception passes the tests of
clarity, certainty and sensible boundaries.
To the extent that it may not, we should spare a modicum of sympathy for
the Intellectual Property Office since some uncertainty is the inevitable
result of lack of certainty in the EU Copyright Directive, which constrains the
UK government's freedom of action.
What follows
is the tentative result of wrestling with the short but not entirely simple text
of 28B. Others may well
have different views on how 28B is meant to apply. It would certainly be welcome to discover that
I have overcomplicated the thing and that it really doesn’t take the 4,000
words of this piece to analyse it. But I
am not optimistic.
In any event
at present 28B is draft legislation, open to consultation until 17 July 2013. The draft will quite likely be amended before
anything is put before Parliament. [Indeed the SI laid before Parliament is quite significantly amended.]
Preliminary
28B divides
logically into two steps. The first step
is to identify whether Bruce has suitable source material at hand. 28B defines this as a copy of a copyright
work lawfully acquired by Bruce and which he holds 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). [Eligible source material is now to be called an "individual's own copy". That is a copy which Bruce has lawfully acquired on a permanent basis, is not an infringing copy and has not itself been made under a copyright exception. Lawfully acquired on a permanent basis specifically includes a purchase, a gift, or a download resulting from a purchase or a gift (other than a download enabling no more than temporary access to the copy); but does not include a borrowed, rented, broadcast or streamed copy. None of this will now apply to computer programs, which are excluded entirely from 28B.]
The second
step is to consider what use Bruce can make of that source material. In general terms he can use the source material
to make a further cop[ies]y of the work provided that the further cop[ies]y [are]is made for Bruce’s
private use for ends that are neither directly nor indirectly commercial. Bruce
cannot transfer the further cop[ies]y to another person[, other than on a private and temporary basis]; and if he transfers the source
material to another person [(other than on a private and temporary basis)] without destroying the further cop[ies]y, that is an
infringement. [A further copy made under 28B is now to be called a "personal copy"]
That may
sound fairly simple. However subtle
complications arise when we try to apply it to the multiplicity of real world
scenarios, including some specifically mentioned by the Hargreaves Report.
For the sake
of relative simplicity we have not addressed the effect (if any) of contractual
prohibitions, and have ignored the effect of any TPM restriction. [28B will render a contract term unenforceable to the extent that it purports to prevent or restrict the making of a copy which would under 28B would not infringe copyright. TPMs will remain effective.]
Source material
First, consider the source material that Bruce must have in
order to be able to use 28B. Would source
material that Bruce acquired in any of the following ways qualify?
[Remember that none of this applies to computer programs and the source material cannot itself have been made under an exception from copyright.]
(a) Bruce
purchased a genuine CD
Definitely OK. 28B can
be used where the individual has ‘acquired’ a copy lawfully on a permanent
basis. Purchasing a genuine CD is the
paradigm case. 28B could also be used if
Bruce had received the genuine CD as a gift, either new or second-hand, or had
bought it second hand. But Bruce could not use 28B if he had rented the CD or
borrowed it from a library, from his sister or from a friend. [But not computer programs. Computer programs have their own regime of copyright exceptions under the EU Software Directive. See sections 50A to 50C of the 1988 Copyright Act.]
(b) Bruce
purchased an infringing CD
Copyright is infringed by the person who made the infringing
CD; and also by the person who sold it if he knew or has reason to believe it
was infringing. Bruce did not infringe
copyright by merely purchasing it. So
from Bruce’s perspective as a matter of copyright law he may have acquired it
lawfully, even though it was an infringing copy. This might suggest that he can use it as
source material for making a 28B copy.
Contrary to that, in its December 2012 response to
consultation the government said that the exception would be limited to use by
people who already own a lawful copy of a work; and that the exception would
permit copying only by a lawful owner of an original copy.
But differently again, in its recommendation in the same
document the government said the exception would allow a lawful owner or buyer
of a copy of a work to reproduce that copy for their personal use.
Lawfully acquiring a copy and lawfully acquiring a lawful
copy differ significantly from each other.
It is not obvious from the consultation history which the government
intends. [Now clarified. 28B now makes clear that the source material cannot be an infringing copy.]
As to the merits of each approach, on the one hand why should
someone be able to make use of 28B to make another copy of something which
already infringes? On the other hand,
why should the consumer be at risk of infringement simply because the original
copy turns out to be infringing? The
consumer is poorly placed to know with any certainty whether what s/he has
purchased is genuine or infringing. That
is especially the case with secondhand CDs, but can also apply to apparently
genuine original CDs. (It can happen
that a well known label sold through reputable retailers turns out to be
unlicensed.) Would it be fair to the
consumer that his or her ability to use the exception depends on something that
will often be out of her knowledge and control? Should the exception be inapplicable
only where it was obvious to the consumer that s/he was acquiring an infringing
item? [It will make no difference if Bruce has no means of knowing that the source material is an infringing copy.]
It is also unclear whether private copying from an
infringing source copy is permitted under the EU Copyright Directive, with
which this exception must comply.
Whether the private copy exception under the Directive can apply to
unlawful source copies is the subject of a currently pending reference to the
EU Court of Justice, in ACI Adam and
Others Case C-435/12. [Decided 10 April 2014.]
(c) Bruce borrowed a copied CD from a friend
No. A borrowed CD,
whether copied or genuine, is not held permanently. The exception could be used to make a private
use copy only from a copy held on a permanent basis. [No change.]
(d) Bruce received a copied CD as a gift
If the copy for some reason does not infringe, then OK. Bruce holds it on a permanent basis. If it does infringe, then the position is the
same as scenario (b): unclear. [Now clarified. As in (b), an infringing copy cannot be used as source material for 28B.]
(e) Bruce
purchased a permanent legitimate copy of a song by download over the
internet.
OK, or at least so the government appears to intend. It mentioned
eBooks in the December 2012 impact assessment.
In the Dec 2012 consultation paper it said “This would include
downloaded digital content that has been purchased to keep (or licensed in an
analogous way) such as eBooks” (Consultation note 41).
However the actual wording of the exception may not be quite
so clear. Unlike acquiring a CD,
downloading involves making a new copy.
Does ‘acquiring’ include making a new copy? Since the government
apparently intends that it should, it would be as well to put this beyond
doubt.
In any event the exception does not apply to rented or
streamed materials. [Now clarified. Bruce will be able to use a copy acquired by means of a non-infringing download resulting from a purchase or a gift (other than a download enabling no more than temporary access to the copy). Bruce will not be able to use borrowed, rented, broadcast or streamed source materials.]
Use scenarios
Let us assume that Bruce is equipped with a permanent copy
that he can use as source material under S28B.
We will assume that it is a genuine purchased CD (not unlawfully copied,
not an unlawful parallel import from outside the EEA). Would any of the following acts be permitted
under S28B?
(a) Bruce
copies the CD to the hard drive of his PC.
OK, so long as he makes the copy for his private use for
ends that are neither directly nor indirectly commercial. However, whether he has made the copy for his
private use turns out to be quite a tricky question. Some uses involve further copies being
generated. Others do not (or at least
only transient copies). How does 28B
apply to each situation?
28B legitimises only a copy made for Bruce’s own private
use. So the key question appears to be what
was Bruce’s purpose when he made the copy?
That appears to depend at least in part on what was in his head at the time he
made the copy (there may be room for arguments about whether the test is
subjective, objective or hybrid – we will assume that Bruce’s
intention has some relevance). However surrounding
circumstances would offer some pretty big clues to the purpose. [28B now fleshes out the concept of private use with some examples. It includes private use facilitated by:
- 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:
(i) Bruce copied the CD into a folder accessible
only to himself.
OK. That would be consistent with Bruce’s
professed private use purpose.
(ii) Bruce copied the CD into a public P2P sharing
folder on his hard drive.
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.
(iii) Bruce copied the CD into a folder accessible to
a small circle of others (such as family members) on his home network.
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.
(iv) Bruce copied the CD into a folder accessible
only to himself, but with the intention of playing the tracks from the folder through
his home loudspeakers via a streaming device.
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'.]
(b) Bruce
copies the copy that he made in scenario (a) from his hard drive to his
portable device (e.g. MP3 player, mobile phone or USB stick)
This 'daisy-chaining' is a very common scenario. The Gowers Report back in 2006 recognised the
importance of daisy-chaining for format shifting: "The exception would
only allow one copy per ‘format’, but it would also have to recognise that
transfer between formats may require intermediate steps (or formats) to be taken."
(para 4.76)
If the copy made from the CD to the hard drive in scenario
(a) was legitimised by 28B, this further copy made from it is probably also
legitimate if made for Bruce’s private use.
But 28B does not spell this out beyond question.
Since we are assuming that Bruce legitimately made the copy
on his hard drive under 28B, he has lawfully acquired that copy (if we are
right that lawfully acquiring includes lawfully making a new copy). Under 28B he is entitled to keep the hard
drive copy permanently unless and until he transfers the original CD to another
person.
On that basis Bruce can probably ‘daisy chain’ 28B to make
successive copies from the CD to his hard drive and then from his hard drive to
his portable device, so long as both copies are for his own private use. He could presumably keep both copies and
continue to sync between them.
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.]
(c) Bruce copies the copy that he made in scenario (a)
from his hard drive to his private cloud storage area
OK, if daisy-chaining is permissible. 28B places no restriction on the place in
which the 28B copy is stored – only that it be made for his private use for
ends that are neither directly nor indirectly commercial. On the face of it that would include a
private cloud account. Since storing the
copy in that account involves making a new copy, the ability to daisy-chain is
important in order to bring the cloud copy within 28B. [Daisy-chaining will be OK. See above.]
Cloud storage is specifically addressed in 28B(3). The drafters appear to have been concerned
that storing in the cloud could amount to a transfer of a copy to another
person, and thus trigger the infringement provisions of 28B(2). They have therefore provided that nothing in
28B(2) prevents an individual from storing a further copy made under 28B in an
electronic storage facility accessed by means of the internet or similar means,
where that facility is provided for his sole private use.
While specific provision for cloud storage is probably
necessary from the point of view of clarity, this sub-section is problematic. First ‘storing a further copy made pursuant
to [28B]’ is an odd phrase in his context, since the act of storing a copy in the cloud
necessarily entails the making of an additional copy. Is the section referring
to that further copy, to a pre-existing further copy (e.g. made by copying from
CD to computer hard drive) or to both?
The uncertainty is compounded by the reference to 28B(2),
since that deals with transferring “the copy”.
That most obviously means the transfer of a pre-existing copy – such as
when Bruce gives a USB stick containing a copy to his sister. On that understanding storage in the cloud
would not be a transfer of ‘the copy’ at all, since it involves the making of a
new copy in the cloud. Yet 28B(3) seems
to suggest that this process could be understood as a transfer of "the
copy".
If “transfers the copy” is indeed broad enough to include a
transfer process that creates an additional copy, that introduces further
complications into the operation of 28B(2), since more copies will come into
existence than 28B(2) appears to contemplate. [Re-drafted and clarified. Bruce's copy on his hard drive made from his CD is a personal copy under 28B. He can make a further personal copy from that and store it in his private cloud storage. However this only applies if the storage area is accessible only by Bruce and the person responsible for the storage area. Shared storage areas will not count.]
(d) Bruce
copies the copy that he made in scenario (a) from his hard drive to his
sister’s portable device for her.
No. The second act of
copying (from hard drive to his sister’s device) would not be for his own
private use. [No change.]
(e) Bruce
copies to his own MP3 player with the intention of lending the MP3 player to
his sister.
No, at least if Bruce’s purpose in doing this was that his
sister should be able to listen to the tracks.
The copy was not made for Bruce’s private use, but that of his sister. The same would apply if Bruce copied to a USB
stick with the intention of lending it to her. [No change.]
(f)
Bruce, having copied to his own MP3 player for
his own private use, later decides to lend the MP3 player to his sister.
Probably OK? Since
the later decision to lend the MP3 player was not Bruce’s original purpose,
that does not prevent the copy being originally legitimate under 28B. There is nothing in 28B to suggest that it
becomes illegitimate if Bruce's intention changes later. As Bruce is only loaning the MP3 player, it
is not caught by the prohibition on transferring (otherwise than on a private and temporary basis) the 28B copy to
another person. The same would apply to
a USB stick. [No change.]
It would be a separate question whether, when the sister
listens to the tracks stored on the borrowed device, she infringes
copyright. Probably not (so long as she
does so in private circles), but that may be affected by the outcome of a currently
pending reference to the CJEU in the Meltwater
litigation.
(g) Bruce,
having copied a CD to a USB stick for his private use, then gives the USB stick
to his sister.
No. Although the USB
stick copy was made legitimately under 28B, under 28B2(a) Bruce infringes
copyright if he transfers that copy to another person otherwise than on a private and temporary basis. That previously legitimate 28B copy becomes
an infringing copy.
(h) Bruce,
without making any copy of it, gives a genuine purchased CD to his sister.
OK. Under general
copyright law Bruce is entitled to transfer to someone else a physical copy
that was previously put into circulation in the EEA by or with the consent of
the rightsholder (the principle of ‘exhaustion of rights’). [No change.]
(i)
Bruce, having copied a genuine purchased CD onto
a USB stick for his brother, then gives the CD to his sister.
Copying the CD is outside 28B as it is for Bruce’s
brother. That copy therefore
infringes. Bruce can give the genuine CD
to his sister since exhaustion of rights still applies to the CD. [No change.]
(j)
Bruce, having copied a genuine purchased CD onto
a USB stick for his private use, then gives the CD to his sister.
OK, but only if Bruce first destroys the copy on the USB
stick. If not, he infringes copyright by
transferring the CD to another person.
However it is the copy on the USB stick, not the CD, which is then
regarded as an infringing copy. Thus the
same result is achieved as if a copy was made outside 28B. [No change.]
(k) Bruce
purchases a copy by download to his MP3 player, then lends the MP3 player to
his sister.
OK. 28B does not come
into play since no 'further copy' is made.
Private loan is unlikely to be an act restricted by copyright and, since
the device itself is lent, no new copy is made.
See (f) above as to whether Bruce's sister would infringe when listening
to the tracks. [No change.]
The same would apply to a copy downloaded to any other
device, including a storage device such as a USB stick.
(l)
Bruce purchases a copy by download to a USB
stick, then sells the USB stick containing the original copy by online auction.
No, at least for the moment.
28B does not come into play since no 'further copy' is made. Selling the USB stick infringes the copyright
owner’s exclusive distribution right. At
present exhaustion of the distribution right applies only to physical copies
(such as CDs) put into circulation by or with the consent of the rightsowner,
not to a download made by a customer.
However it is possible that this may change in the future, should the
CJEU expand its finding in UsedSoft so
as to apply to non-computer programs.
This is a highly controversial issue. [No change.]
(m) Bruce purchases a copy by download to a USB
stick, makes a further copy from the download onto his hard drive for his
private use, then sells the USB stick containing the original copy by online
auction.
By making a further copy for his private use Bruce brings 28B
into play. Does that make the situation any
different from where he has made no further copy at all?
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.
What if Bruce does destroy the further copy? Here things gets quite obscure, even controversial. First,
as explained above it may not be clear whether a download is a ‘lawfully
acquired’ copy. [Now clarified to include a download.] If it is, then 28B(2)(b)
states that copyright is infringed where an individual who has made a further
copy within 28B permanently transfers the copy from which it is made, without
destroying the further copy.
The casual reader might think that it follows that if Bruce
destroys the further copy, then transferring the copy from which it is made
does not infringe copyright. If 28B(2(b)
does mean that, that would seem in effect to extend UsedSoft to non-software. [No. See below.]]
Another view is that 28B provides a limited exception from
infringement for certain further copies; that 28B(2)(b) describes a particular
circumstance in which the exception is disapplied, and how in that circumstance
the otherwise exempt further copy is to be treated as infringing (which it
would have been if it had not fallen within 28B in the first place). On that basis 28B(2)(b) says nothing about
the underlying issue of whether transferring a downloaded copy of a
non-computer program benefits from exhaustion of rights (as in UsedSoft) or not. That may at some point come before the CJEU. The section appears to accommodate either
possibility. [The Government in its Response to the Technical Review states that 28B creates an exception only to the reproduction right and does not create any exception to the distribution right or the right of communication of works to the public. Nothing in those provisions creates a new right to re-sell copies, where that right does not already exist.]
