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?
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…