Copyright law takes a step back after rights holders challenge
the sensible private copying exception
RIPPING MUSIC FROM a CD to your phone is
once again illegal – as is taking photos
of designer objects. Copyright law is
convoluted, but the UK took a step
towards sanity in 2014 with the
introduction of a private copying
exception, which allowed individuals
to back up films in the cloud or rip
tracks from CDs into digital formats
However, that has now taken a
step backwards, after a legal challenge
from rights holders who claimed they
weren’t being properly compensated,
“for what they saw as a loss of sales
opportunity,” said Peter Dalton of
tech law firm Kemp Little.
This compensation is required
under EU law. “The UK government
was keen to avoid any sort of levy,
and argued that its limited copyright
exception (which allows copying for
personal use only) would not result
in any lost sales for rights holders,
because it simply reflected what
consumers were already doing,”
Dalton noted. But rights holders
said the government failed to prove
that – and the court agreed.
This means that, again, backing up
your music collection is technically an
infringement – although it’s unlikely
anyone will be prosecuted. “Even if
it was possible to identify infringers,
the cost of pursuing the claim and the
potential for bad publicity mean that
rights holders are unlikely to enforce
against such individuals,” said Rob
Guthrie, partner at Osborne Clarke
If you ripped songs when it was
legal, you’re in limbo. According
to Guthrie, such tracks have an
“unclear” status: “The judge who
quashed the regulations refused to
decide this point, saying it would have
to be resolved in future disputes.”
Photo finish
Another copyright change has raised
eyebrows. The government plans to
extend copyright for “works of artistic
craftmanship” such as designer chairs
from 25 to 70 years after the creator’s
death – the standard UK term for
copyright. This will include photos or
2D representations of these objects
Lawyers say the legislation needs
refining. “For example, there may be
certain circumstances where a use is
made of the copyright work that does
not commercially compete with the
copyright owner,” noted Alison Rea of
Kemp Little. For example, “incidental
inclusion of an artistic work in the
background of a photograph, or where
a copyright work is used as part of a
parody or pastiche”.
While photographers, museums
and publications should be concerned,
most of us need not worry. “If you post
a picture of a chair you bought on
Twitter, the company’s not going to
sue you – you just spent £5,000 on a
cool designer chair,” said Iain Connor,
a partner at Pinsent Masons. “They’re
going to say thank you very much.”
They’re worried about knock-offs,
or “inspired by” furniture that’s sold
for a tenth of the price. “The chairs
that retail in Harrods for £5,000, but
copies can be bought in the back of
The Sunday Times for £499 – that’s
what the change is directed at.”
Will it ever get better?
Companies can help by writing in
exceptions, letting you share photos
of a swish chair or explicitly giving
permission to make copies of a song.
iTunes does this, letting a track be
copied to up to five devices. “It’s
an acknowledgement that giving
someone a single-use licence is a
bit ridiculous,” Connor said.
Despite the law being an ass, the
private copying exception is unlikely
to be rewritten into the statute book
anytime soon. “Unfortunately, in this
case, the government appears to have
retreated from the issue, having being
burned once,” noted Dalton.
“Laws that are rarely enforced, and
frequently ignored or not understood,
are deeply unsatisfactory,” Dalton
added. “Hopefully, the government
will return to this issue in the future
and bring the law into alignment with
the practical and commercial reality
of how consumers use their digital
media in the 21st century
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