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UK : Analysis of the proposal for a « Private copying exception »

UK : Analysis of the proposal for a « Private copying exception »

Legal text

Under the proposed modifications, copyright will not be infringed where an individual (Section 1):

  1. uses a copy of a copyright work lawfully acquired by him ;
  2. to make a further copy of that work ;
  3. provided that the further copy is made for that individual’s private use for ends that are neither directly nor indirectly commercial;
  4. provided that 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
  5. provided that the making of the further copy does not involve the circumvention of effective technological measures applied to the copy from which it is made.

The text goes on in saying that copyright will be infringed where an individual who has made a further copy of a copyright work pursuant to subsection (1) :

  1. permanently transfers the copy to another person; or
  2. permanently transfers the copy from which it is made without destroying the further copy.

An individual will always be able to stores 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.

No contract can prevent or restrict the doing of any act permitted by the proposed modifications.

Analysis

With this text, the UK Government would like to introduce in the UK Copyright Law a very very narrow private copy exception.

This narrow text will only allow an individual to copy content they own, and which they acquired lawfully, to another medium or device for their own personal use.

For example, it 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 copies of their CDs and give them to other people.

The Government says that the « exception aims to align the law with behaviour most people consider to be reasonable, to remove unnecessary regulation, and to help build confidence in and respect for copyright ».

Private copying exceptions are permitted by Article 5(2)(b) of the Copyright Directive.

The exception applies only to copies lawfully acquired by the copier, who may not transfer copies to other people.

Following the UK Government, constraining the exception in this way « allows for appropriate compensation to be paid at the point of sale, and ensures the exception will cause minimal harm to copyright owners« .

The exception is drafted as Section 28A of the Copyright, Designs and Patents Act.

Subsection (1) defines who is permitted to make copies and under what conditions. These conditions include :

  • the copier must be an individual, not a body corporate ;
  • the individual must have lawfully acquired, on a permanent basis, the copy from which further copies are made ;
  • the further copy must be made for the individual’s private use, for non–commercial ends.

If technological copy protection measures are applied to a copy, the exception does not permit an individual to circumvent those measures in order to make copies.


The exception does not allow the making of copies for multiple people ether by transferring a copy made under the exception or by transferring the original and retaining the further copy.


An individual who makes a copy under this exception is permitted to store that copy in any private place, including a private cloud or other remote electronic storage.

Subsection (5) aims to prevent contract terms restricting use of this exception.

Amendments to Schedule 2 to the Act apply this exception to rights in performances to the same extent as it applies to rights in copyright works.

Individuals who are unable to access the exception as a result of technological copy protection measures applied to a work can complain to the Secretary of State.

There are one or two points that I would like to highlight here :

  1. the lawfully acquirred condition. The UK Government here claerly follows the recent French modifications. Note that this demand is not written in the Belgian Copyright Law because it was not asked by the European Directive. How to check if the source of the copy will be legal or not ? In France, this condition has been also introduced and so the private copy compensation (calculated by the private copy commission) was diminished from a small pourcentage because the unlawfully acquirred copies were not remunerated any more.
    But the intention of the UK Government is to not introduce a compensation scheme.
    So what will be the consequences of that condition ? It is to continue to permit the rightholders to sue the people who infringe their rights in copying unlawfully acquirred products ;
  2. the condition demanding that the copy from which the copy will be made has to be permenantly held by the copier is bizarre. The text specifies that « for example it is not a copy that is rented to the individual for a specified period or borrowed from a library ». When someone has rented the product (book, CD) for a specified period, hasn’t he lawfully acquirred the product ? When someone has lawfull borrow a book, hasn’t he lawfully « acquirred » the book ?
    This condition in a sens contradicts the previous one.
    And again, how will the rightholders enforce their rights ?
    This condition has no meaning following me
  3. a DRM can lawfully prevent to make a copy says the final condition ;
  4. a contract can never restrict or prevent people from doing their copy.

The UK Government has not the intention to introduce a compensation scheme. Even after having introduced this (narrow) private copy exception.

It is clearly against the 2001 Directive.

Art. 5.2.b says leave to the Member State the choice to introduce or not the private copy exception. But when a country introduces this exception, it has also to introduce a compensation scheme in the favour of the rightholders. The European text is crystal clear.

The governmental text is ambiguous on that point.

Indeed. Their commentaries below the text say that « Constraining the exception in this way allows for appropriate compensation to be paid at the point of sale, and ensures the exception will cause minimal harm to copyright owners. ».

What does that mean ?

There is a clear contradiction in this commentary. What does this « appropriate compensation » mean ? Remind that it is not the vocabulary of the 2001 Directive which uses « fair compensation » wording. And what does « at the point of sale » mean ?

The danger is the using of the « minimal harm » wording.

This expression refers to the Recital 35 of the 2001 Directive. This Recital says that « In certain situations where the prejudice to the rightholder would be minimal, no obligation for payment may arise. ».

Conclusion

The introducing of a private copy exception is a good thing.

It puts a end to a ridiculous situation. Thanks to all our electronic products, we can so easily copy CD, books, etc. But in UK, people who did that currently infringe copyright. Even if the copy is done for their sole private use.

But the way the UK government tries to solve this issue is scandalous.

Contrary to the European text, they don’t want to clearly compensate rightholders. They think that because the exception is so narrowly written it will only cause minimal harm to rightholders. But I don’t think i twill be the cause.

The problem is that the European Directive doesn’t explain its « minimal harm » expression. It is so leaving to Member States and at the end of the road to the European Court of Justice who will certainly have the final word on this.

Count on that.

By Axel Beelen

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Juriste de formation, je suis spécialisé dans la matière de la propriété intellectuelle.
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