The UK Consultative Document and the Problems of Private Copying

In December 2006, Andrew Gowers, an editor of the Financial Times, issued a report and recommendations to Gordon Brown, then Exchequer, on various issues related to copyright. One controversial part of the Gowers report was his rejection of a call by dinosaur rockers for an extension of the term of copyright for sound recordings. But there were other, meat and potato recommendations too. Yesterday, the UK Intellectual Property Office, under the auspices of Lord Triesman, the Parliamentary Under Secretary of State for Intellectual Property, which issued a very substantial document, “Taking Forward the Gowers Review of Intellectual Property: Proposed Changes to Copyright Exceptions.” The document begins a formal process of implementing recommendations, in two stages: (1) the submission of public comments by April 8; (2) followed by a draft law, which will be the subject of its own consultative process.

“Taking Forward” is an exceptionally thorough, careful document, setting out the issues and laying out a number of options. It does not propose specific statutory language and in some cases does not make recommendations, in favor of discussing problems and options. There are five categories of issues covered: (1) educational exemptions (2) format shifting; (3) research and private study; (4) libraries and archives; (5) parody. I will focus only on the format shifting issue because it is meaty enough by itself and because it relates to the Howell case in the U.S. The remainder of the document should be carefully studied though.

In a déjà vu to the recent brouhaha over the RIAA’s position in the Howell case, “Taking Forward” notes in connection with format shifting (para. 81): “The current law is difficult to enforce in this area. Not only may it be difficult to justify the illegality of such activity but, because the restrictions are seen as unreasonable, they can often be damaging to the public’s perception of copyright. Many consumers simply do not understand why the act of transferring music from CDs they own to their MP3 players is illegal.” “Taking Forward” proposes (but with lots of alternative options) a format shifting exception for personal, private use. Format is defined to include not just CD to MP3 but also PC to portable player or CD (the last of these less likely). File sharing is not regarded as format shifting. There would be no right to give away or distribute the copy made; third parties could not make copies for individuals' personal use, and most significantly, the document recommends that the exception only apply to works copied after the exception is enacted. This last recommendation leaves in limbo the status of copies made before legislation is enacted, an approach that will leave a legacy of uncertainty about the law in an initiative whose purpose is to bring certainty.

“Taking Forward” does a very good job of reviewing the complexity of possibilities. Readers can review the document themselves (see pp. 15-20), so I summarize some of the issues.

1. The classes of works to which the exception would apply, i.e., just music, or audiovisual works, photographs, literary works, artistic works, computer games. and other works too? If works beyond music, should the exception be the same for all types of works or should it be different for each type of subject matter?

2. Which format shifts should be covered: analog to digital, digital to digital, CD to MP3, CD to PC?
3. Should consumers be permitted to give away the original once a copy has been made? What about giving away an iPod with burned copies in it?
4. Should third parties be able to make copies for consumers?
5. Should consumers be limited to making one copy if the purpose of the other copy is also to use on a different device?
6. Should the exception apply retrospectively or only prospectively, and on what basis?
7. Should levies be imposed for some or all of the exceptions?
8. Should DRM attach?


Note that the format shifting proposals do not attempt to solve all noncommercial copying; there are still fair dealing issues, covered in the recommendations on private research and copying, as well as educational and library issues. On amending current fair dealing provision in Section 29 of the CDPA, the Document makes a polite criticism of Gowers: "The recommendation made by the Gowers Review were fairly broad brush and leaves a number of questions to be resolved concerning the appropriate scope and form of any amended exception for research and private study." (Para 131). As an American, one thing that particularly interested me was the Document's recognition of the conflicting needs for clear guidelines so that people can know what they may do and what they may not, and the countervailing ad hoc nature of so many determinations. In my opinion, these needs should be addressed separately, but in tandem: there should be clear guidelines where it is possible to have them, but there should also be a safety valve provision for those where it is not possible to foresee specifics, but where a policy can be articulated. English courts operate very well in the period between the Statute of Anne (1710) and the 1911 UK Act in forging such ad hoc principles and in their application and there is no reason to think they cannot do so now.