Developments in Private Copying: Less Red Tape for Business but a Lost Opportunity for Creators?

One of the acts restricted by copyright is the copying of protected work.  This means that if a commercial entity like Spotify, or a broadcasting corporation like the BBC, wants to copy a musical work in order to make it available to its customers or listeners, it needs to obtain a license for the act of copying the work. By all sound judgement this seems like a fair arrangement. However, under current UK copyright law, it would not only be illegal for these commercial or public entities to copy works, but also for you, the individual user, to copy a song, or an audio book, from a CD which you have purchased legally, onto your MP3 player or IPod – you are after all, copying the work, aren’t you?

This is an instance where the law is counter-intuitive and user behaviour is clearly not aligned with it. However, this needn’t be the case and the UK Government is currently in the process of passing a new instrument to adopt, among others, a copyright exception for private copying. Under EU law, in Article 5 (2) (b) the Copyright Directive of 2001 (2001/29/EC) provides Member States with the option of drafting exceptions or limitations to the reproduction right if a natural person wants to copy protected material for private non-commercial use on the condition that the right holders receive fair compensation.

According to an empirical study published in 2011 on private copying and fair compensation, 22 out of the then 27 EU member states have enacted a private-copying exception choosing to meet the fair compensation requirement through a levy system. Despite wide divergences between the various levy schemes, in general terms they apply to media and equipment which can be used to make copies, including CDs, MP3 players, as well as PCs and tablets, and are typically borne by the manufacturers of the equipment, the importers, distributors, or the consumers.

Contrary to EU law, the UK has drafted the proposed exception to copyright without envisaging any form of fair compensation for right holders. What is more, the UK recently published its response to the EU Commission consultation reviewing the existing EU copyright rules, and categorically stated that it does not intend to introduce private copying levies, considering them ‘inefficient, burdensome to administer, and unfair to consumers.’

At the same time, the UK submission agrees with the necessity of providing right holders with fair compensation but explains that their interests are more likely to be harmed if a private copying exception permits individual users to copy protected work for their friends and family, rather than for their own personal use (as currently drafted in the proposed UK instrument). Clearly, providing copies of the songs or e-books you buy to your family or friends will drive them away from purchasing that content themselves. However, the Court of Justice has previously asserted in the Padawan Case that copying by natural persons acting in a private capacity, without narrowing this down to cases of sharing with close persons, must be regarded as an act likely to cause harm to the author of the work concerned [at 44].

Finally, the consultation response points out that national levy schemes are only one way to compensate creators, and other approaches, such as licensing, are also possible. It is conceivable how licensing would work for content that we purchase online, through iTunes or Amazon, for instance, but how would it work when it comes to copying works from CDs or DVDs onto our computers or smart-phones?


Image released to the public domain by Nemo

There is a strong case for allowing users to shift legally purchased content from one medium to another for free. After all, they already paid for it once. In my view, however, deciding not to place a levy on blank equipment may well be seen as a missed opportunity to support creators, particularly young unestablished creators who cannot rely on other sources of revenue, such as royalty payments from record or book sales, radio play fees or live performance tickets. An article in The Telegraph points out that some of the countries with levy schemes, including France, use part of the money collected from the levy to fund and develop new talent. Surely this would be a fairer way to promote creators than to ask and expect writers and musicians to write and perform for free…

A Moral Minefield

In addition to economic rights the creators of copyright works also have moral rights in regards to their creations. The strength of protection accorded to these rights however varies widely across jurisdictions which leads to the question: How strong should moral rights be?


The birthplace of moral rights. Image released to the public domain by Lokal_Profil

While the first copyright statutes were added to the books in the eighteenth century, with the British Statute of Anne, it wasn’t until almost a century later – in nineteenth century France – that the concept of moral rights for authors began to gain recognition. In general terms these moral rights aimed to protect creators and their relationship to their works by providing for rights such as paternity (the right to be attributed as the author of a work) and integrity (the right to prevent derogatory treatment of a work). Their justification was based upon the idea that an authors creations reflect to some degree the personality and reputation of their creator. There should therefore be protection for the works in order to prevent their use in a manner which would be prejudicial to their author.

It does appears that for many creators such moral rights protections are indeed important. A recent experiment conducted by a trio of American scholars, for example, found that creators would be willing to accept less money for their works rather than have them go unattributed. Also the creative commons movement, when updating their licenses in 2004, found that the majority of creators had expressly opted to require attribution from anyone subsequently using their works.

However, not all jurisdictions provide and equal level of protection for moral rights. Whilst signatories to the international Berne convention are required to establish a minimum level of moral rights protection national differences still remain starkly apparent. On the one extreme the continental European tradition – exemplified in the birthplace of the concept: France – not only holds moral rights to be perpetual, inalienable, and imprescriptible but also provides for a broader range of protections such as the right to withdraw works from circulation. On the other end of the scale the American interpretation limits protection to specific forms of visual art only (in the Visual Artists Rights Act of 1990) and even then restricts the protection to the lifetime of the creator. The UK sits somewhere in the middle, providing protection for a greater range of works than the American tradition and extending protection beyond the life of the author whilst simultaneously rejecting the idea of perpetual protection and allowing creators to waive their rights if they so wish.

Such a wide spectrum of protection highlights the international disagreement when it comes to the ideal strength of moral rights. Moving a work, for example, can violate moral rights in some jurisdictions but not others. Likewise colourising a black and white work and adding in commercial breaks  can sometimes be found problematic and other times can be held acceptable. There is no overall consensus.


Adding a splash of colour can sometimes be problematic … Available under CC BY-NC-SA 2.0 by Oneplanet Adventure

All that can be offered therefore are some points of reflection on the topic. On the one hand it can be argued that the integral connection between an artist’s works and their reputation makes the strong protection of moral rights a necessity. When works are altered their original meaning can be distorted or lost. This undermines the original intentions of the creator and potentially therefore causes damage to their reputation and legacy. Without the protection afforded by moral rights it may well be the case that some creators would never publicly release their work.

On the other hand, however, some contend that overly broad moral rights can stifle the future creativity of others and end up thus doing more harm than good. There is a clash at the core of moral rights between the rights of the original artist and the interests of society as a whole. The modification and adaptation of works, for example, can be argued to have profound artistic value. The ability to do so however conflicts with the right to integrity afforded by most moral rights regimes. If these rights continue to exist forever then future generations lose out on potentially valuable artistic contributions. Additionally the presence in several continental jurisdictions of a right to withdraw a work from circulation can see society lose items of significant cultural heritage for future generations if their creators should decide they no longer like their work. These works may already have influenced the wider cultural landscape and their loss therefore would be damaging. The rights of the author must be balanced with the wider interests of society.

Some commentators have also criticised long-lasting moral rights on the basis that the control of the work will eventually fall to heirs of the original creator – heirs who may not necessarily have any artistic understanding themselves. These heirs may therefore take decisions regarding the work on the basis of beliefs that may not necessarily match the creator’s original intentions. The wishes and opinions of the original creator will necessarily become frozen at the moment of their passing and, over time, will therefore become increasingly divorced from the contemporary context in which their work is being explored. Who is to say that the heirs to the estate will always perfectly understand what the wishes of the work’s creator would have been, had they been alive to decide for themselves?


Image available in the public domain via Wikimedia Commons

This is not merely a hypothetical problem: there have been numerous cases in which heirs have tried to limit or prevent adaptations of works long after the death of their author. The estates of playwrights such as Samuel Beckett, Bernard-Marie Koltès, and Bertolt Bercht have demanded alterations to performances of their works or even blocked them altogether. Even when unsuccessful such efforts can be time consuming to deal with: An unsuccessful challenge to the Les Miserables sequel took seven years to conclude! Whether individuals not involved in the creation of the work should be able to so strongly affect its use is debatable.

These concerns are not confined to moral rights alone: The economic aspects of copyright likewise extend beyond a creators life and fall to the control of their heirs. However these economic rights do eventually expire whilst, at least in some jurisdictions, the moral rights can continue to exist forever. It is therefore conceivable that heirs several hundred years removed from the original creator may limit the uses of their works. The further from the passing of the creator the rights survive the greater the likelihood that the sensibilities of the creator and their heirs will drift apart.

Given these concerns is it really a good idea for moral rights to last forever? This, it appears, will continue to be a question for debate for some time to come.