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Private copying illegal again in ongoing battle for a levy

By | Published on Monday 20 July 2015

Houses Of Parliament

You know how you never, I mean never ever, I mean you didn’t even consider it, not even that one time when that one person said – you know – and you thought, well maybe, but no, it’s not right, and I’m not going to do it, so you didn’t do it, not until that very moment when the most magnificent of all the parliaments – yeah, that shit house – said that it was OK, and only then, on that one sunny day last October, did you start ripping tracks off your CDs onto your computer?

And since then, of course, it’s been one big rip fest round your house, just like it was 2004 all over again. Except no one was ripping tracks from CDs in 2004 because it was illegal, and no British music fan would ever do something without first awaiting those all-important kindly words of permission from the pie-scoffing buffoons of Westminster. But then those kindly words finally came and it was good. But wait, people. That moment has passed. We are living in pre-October 2014 times once again. Take note, people. No more ripping. Yes, the big fat rip fest must end right now. You know, just like it’s 2011 all over again.

So yes, the private copy right in UK copyright law is no more as a result of the dispute between government and the music industry on whether or not such a copyright exception should come with compensation for rights owners. As much previously reported, until last October it was illegal under UK copyright law to make private copies of music bought legitimately, such as ripping tracks from CD so to listen to them on a PC or MP3 player. This was dumb law, because so many consumers routinely broke it, and no rights owner was ever going to sue someone who did so.

Both of the UK government’s most recent reviews of copyright law recommended introducing a so called ‘private copy right’ – found in most other copyright systems – so that the ripping of tracks for personal use would not amount to copyright infringement. Few in the music industry oppose the idea of the private copy right in principle, so it’s a wonder it took until 2014 – just as digital started to outperform CD so that the need to even make private copies began to really wane – for it all to become law.

But there was still a dispute, because elsewhere in Europe the private copy right is accompanied by some sort of compensation for copyright owners, traditionally a levy charged on devices used to make copies, so back in the day blank cassettes and CDRs, and more recently MP3 players.

Though in more recent years there has been much debate in Europe as to what exactly to apply the levy too, because – while smartphones, tablets and PCs may be used for copying music – many consumers who buy those devices never copy music to them, especially now that streaming services and licensed digital lockers enable them to access music through those gadgets without employing the private copy right.

Presumably aware of that controversy, the UK government decided to introduce the private copy right without levy, arguing that that didn’t violate European law – which sets out a framework for copyright exceptions around the European Union – because the British private copy right is so much narrower than in many other European countries, and therefore, while there may be a case for compensation over there, there isn’t over here.

But the UK music industry – worried that it might look entirely too reasonable if it accepted that argument, and that people might think of the music community as responsible rights owners whose copyrights are worth respecting if they complied – took the government to judicial review arguing that ministers had failed to demonstrate that no compensation was due, as they are obliged to do so by European law. And the courts agreed.

Which means the government now has to review the whole matter anew, either axing the private copy right entirely, or introducing it with a levy system, or putting together a better case for why, with a narrower private copy right, music rights owners do not need compensating. In the meantime, the High Court has quashed the private copy right exception introduced last year, meaning it is once again – technically speaking – illegal to rip tracks from CDs for private use.

The campaign for a private copy levy in the UK has been led by BASCA and the Musicians’ Union, supported by cross-sector trade group UK Music, and it is understandable why organisations specifically representing songwriters and musicians have pushed for such compensation, because it is one of the few music revenue streams which is usually shared automatically with creators and performers as well as corporate rights owners.

Though arguably those energies would be better used pushing for a boost in other performer and creator rights across Europe, rather than championing a levy which seems idiotic to consumers, most of whom assumed they already had to right to make private copies, and who are now reading that the music industry has forced (albeit indirectly) the quashing of a sensible bit of copyright law.

And especially as the notion of a private copy – even if you reckon it applies to downloads as well as CDs (as some did at a recent MusicTank debate on the issue) – will become pretty much redundant as access models of music provision become the norm.