Written by David Marchese
On 1st October 2014 further changes to UK copyright law come into force. Under the Copyright and Rights in Performances (Personal Copies for Private Use) Regulations 2014, it will now be lawful to make personal copies of copyright works for private use. This will apply to all kinds of copyright works other than computer programs, in particular music in digital format. Up till now, the only similar exception has been for TV recording “time-shifting”, and most consumers will have been surprised to learn that, for instance, transferring a track from a CD on to a mobile electronic device was an infringement of copyright law. As the judge commented in the case of CBS Songs Limited v Amstrad Consumer Electronics Plc as long ago as 1988, “a law which is treated with such contempt should be amended or repealed”.
The new exception is restricted to making back-up copies, “format-shifting”, and storage (including storage “in the cloud”). The exception is purely personal, so a copy made for format shifting purposes cannot be transferred to anyone else (other than on a private and temporary basis) without infringing copyright, and is limited to private, non-commercial purposes.
It is not possible for copyright owners to contract out of the new exception. However, the Regulations also address the issue of what happens where the copyright owner has used “restrictive measures” to prevent the work being copied, or limiting the numbers of copies than can be made. In this case an individual who is prevented from making a personal copy of the work has the right to complain to the Secretary of State, who has power to issue a direction to the copyright owner to establish a “voluntary measure or agreement” to permit such copying if the restrictive measure unreasonably prevents or restricts the making of personal copies.
The scope of the new personal copying exception is narrower than the exceptions in other EU countries, which often allow copies to be shared with family and friends. However, these countries usually have levies to compensate copyright owners for any sales lost as a result of the exception. Typically, levies are imposed on recording devices and media, which have to be paid whether or not they are used for private copying. The issue has been debated for some time, and it has even been suggested that to introduce an exception for private copying without at the same time introducing a levy is not permitted by the EU rules. The Government (backed by independent legal experts) has expressed confidence that the new exception cannot be objected to, but the story may not be quite over yet.
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I graduated from Oxford University before qualifying as a solicitor at Herbert Smith. I went on to work at Richards Butler and then Davenport Lyons, before joining Gordon Dadds in 2014. I have extensive experience advising on the law of intellectual property, information technology and commercial contracts. I am the author of Business Licensing Agreements (Longman, 1995), the section on Supply of Goods and Services in Practical Commercial Precedents (Sweet & Maxwell) and several published articles including Joint Ownership of Intellectual Property (EIPR, 1999) and Warranties and Covenants in IP Licences (OUP, 2009).