The UK copyright system is set for a shake-up.  On 1 June, reforms to the copyright exceptions will come into force.  The exceptions say what third parties may do in relation to copyright works without infringing copyright.  The reforms will widen the exceptions, to the benefit of consumers and businesses that innovate but perhaps to the detriment of copyright owners.  The intention is to create a copyright system that is better suited to the digital age.

The right to copy 

One key reform is the introduction of a new ‘personal copies for private use’ exception. This will allow individuals to make as many copies as they like of a copyright work they own for their private, non-commercial use (known as a ‘personal copy’).  ‘Private use’ includes format-shifting, making back-up copies and storage.  For example, an individual who purchases a CD will be able to ‘format shift’ the CD by copying it onto other devices.  It is currently illegal to do this.  A copyright owner will not be able to impose purchase or licence terms which prohibit the right to make personal copies.  Any contractual term which is more restrictive than the exception will be unenforceable.

The exception applies to all categories of copyright works, but not to computer programs.  The exception will have retrospective effect in that if an individual has already (illegally) made personal copies of a work they own prior to 1 June, those copies will fall within the exception (and so become legal personal copies) after 1 June provided they were made for private, non-commercial use.  The government has chosen not to introduce a fair compensation system for copyright owners whose works are copied under this exception.

Limitations on the right to copy 

Copyright owners will, naturally, be concerned that this exception could legitimise reproduction of their works on mass leading to a potential loss of sales and revenue. The exception as drafted aims to avoid that by providing that individuals will not:

  1. be able to rely on the exception to copy works they have borrowed, rented or downloaded on a temporary basis or works that are broadcast or streamed;
  2. be permitted to make personal copies and then transfer them to others (other than on a private and temporary basis).  This would, for example, prevent an individual selling personal copies of a CD or manufacturing personal copies of the CD for all of their family and friends;
  3. be permitted to make a personal copy, pass on the original copyright work (other than on a private and temporary basis) and retain the personal copies.  For example, if the individual wants to sell the CD they have copied or give it away permanently, they must destroy their own personal copies.  This aims to avoid a situation where commercial sales of the CD fall because a large number of people are making their own personal copies from one original CD purchase.

 Copy protection measures 

Copyright owners will still be able to apply copy protection measures to their works.  However, if these measures unreasonably prevent or restrict the making of personal copies then an individual may complain to the Secretary of State who can issue ‘directions’ to the copyright owner.  The directions would, presumably, require the removal of the copy protection measures although the legislation is not clear on this.  Any directions issued must be publicised.  It remains to be seen if, and how frequently, consumers will use this right of complaint and what directions, if any, the Secretary of State will issue.   Copyright owners may again be concerned that this complaints mechanism will tip the balance in favour of consumers and undermine their ability to prevent illegitimate copying of their works.

Scope for abuse? 

This new exception puts on a legal footing what many consumers already do with their CDs, DVDs or downloads in the UK.  Despite the safeguards drafted into the exception, the scope for abuse is clear and the difficulties in practical enforcement obvious.  Content creators should look to take full advantage of the amended exceptions.  Copyright owners should ensure they are familiar with the scope of this exception (and the other exceptions as amended) and take prompt action to enforce their rights where dealing with their work falls outside what is lawful.

Breaking news – as this post is being uploaded, it is being reported that the government has changed its mind and decided not to implement the personal copies for private use exception.  There has been no official confirmation of this as yet and the reason for this sudden change of heart is not clear.  We will report further when more details are available.