Legalising Format-shifting

Format-shifting, space-shifting and time-shifting are curious oddities of copyright law. Two of these three are currently illegal in the UK, all are routinely done by thousands, if not millions of people across the country. While there have been attempts and drives to change this by legalising format- and space-shifting, the current EU laws on copyright seem designed to prevent such a reduction to copyright law.

Time-shifting is where a work, covered by copyright, is copied so that it can be viewed or listed to at a more convenient time. The most common version of this is when a TV or radio broadcast is recorded (originally onto cassette tapes, more often onto hard drives) so that it can be watched later, at a more convenient time. This was made legal in 1988, through section 70 of the Copyright, Designs and Patents Act 1988.

Space-shifting is much the same, but where the work is copied to a different location (i.e. from a computer onto a music player) so that it can be used in a more convenient place. Format-shifting is where a work is adapted or adjusted, so that it is in a more convenient format. This would include copying something from a cassette or record onto a CD, or copying a CD onto a computer or music player. Under current UK law, this is usually an infringement of copyright, or an act of piracy.

There are some exceptions; the most obvious is if the work is not covered by copyright – but estimates suggest that only 18% of all sound recordings are in the public domain (which will drop to below 7% if the current copyright extension plans succeed), and this includes recordings where the music itself is still in copyright. The second biggest exception would be where whoever is doing the copying has a licence. This is why music files downloaded through certain legal services (such as iTunes or AmazonMP3) may be copied to a portable music player or a different computer, depending on the agreement.

Moving to statutory exceptions, very few of these are likely to be relevant; “fair dealing” is a very restrictive (if poorly defined) defence, and usually applies to quoting, or referencing and while it is possible to make a back-up copy of a computer program (where necessary), this does not extend to other types of work, such as sound recordings. The law is quite clear that format- or space-shifting is copyright infringement.

This is quite unusual; in most jurisdictions that I am aware of, there is at least some form of exception to copyright covering format-shifting. In the US, this sort of activity seems to be covered by “fair use” (confirmed by the Ninth Circuit Court of Appeals in RIAA v Diamond). In much of Europe and Canada copying for private use is permitted to a limited degree, and in Australia some personal copyright exceptions were created by the Copyright Amendment Act in 2006.

A Consumer Focus survey early last year found that 38% of people admitted copying CDs, and 4 in 5 thought copyright law needed updating. In a recent Twitter survey run by the Pirate Party (as part of the #PPUkSurvey project), all those who responded admitted to format-shifting and thought it should be legal. But it is not just campaigning groups and individuals who are asking for change.

In 2006, the Gowers Review looked into the issue of format shifting and made the following recommendation:

Recommendation 8: Introduce a limited private copying exception by 2008 for format shifting for works published after the date that the law comes into effect. There should be no accompanying levies for consumers.

Applying this to works created only after the law came into force was required to get around the EU law (specifically Directive 2001/29/EC) which requires any such exceptions to involve ‘fair compensation’ to be given to copyright owners. Elsewhere in Europe, this seems to be done via “blank media levies” – where an additional charge is made on all blank media devices sold (blank CDs, cassettes etc.), and then distributed among collecting societies – but these were criticised as “blunt instruments”. The argument made by the Gowers Review was that by giving copyright owners some warning that format shifting will be legalised, they will be able to increase prices in advance as compensation.

More recently, during the consultation period of the ongoing Hargreaves Review of IP Law, many groups called for a change to the law on format-shifting and even the most aggressive copyright groups such as the BPI came out in support of the legalisation of format-shifting in their response – previously they had only indicated they were unlikely to take legal action against those doing infringing this way.

It is interesting to see this change in opinion from the major copyright lobbies – particularly as many of the arguments used against online copyright infringement or file-sharing also apply to format-shifting; such as lost-sales, or taking control away from artists. It is also interesting as, law or no law, the major copyright owners are in a position to take action in this area; not just by offering not to sue people, but by actively licensing their content in a way that would permit format-shifting.

Given that there now seems to be no opposition to legalising format-shifting, it is possible that the Hargreaves Review will recommend it. This could lead to there being the political will in Government to change the law alongside a more general update to UK copyright law expected later this year. However, even if there is a desire for change, it seems that it will be very difficult to get any legislation of format-shifting through the EU, based on Directive 2001/29/EC, which may indicate why the Government has been unwilling to look into this so far.

If real change to copyright law is going to happen, it will need to start in Brussels and Strasbourg, with the European Union. Lobbying national Parliaments may not be enough; it will be necessary to have a strong Pirate presence across Europe and in the European Parliament.

Update 18/5/2011: The Hargreaves Review did, indeed, recommend a “limited private copying exception” corresponding to “what consumers are already doing”. Their argument to get around the Infosoc Directive is that as copyright owners are “well aware of consumers’ behaviour in this respect” they will have “already factored [it] into the price [they] are charging”. [at 5.30]

I have to confess a certain regret that I did not see that argument when considering it myself.

For reference, the following are the relevant articles of Directive 2001/29/EC:

Article 5:

2. Member States may provide for exceptions or limitations to the reproduction right provided for in Article 2 in the following cases:
(b) in respect of reproductions on any medium made by a natural person for private use and for ends that are neither directly nor indirectly commercial, on condition that the rightholders receive fair compensation which takes account of the application or non-application of technological measures referred to in Article 6 to the work or subject-matter concerned;
5. The exceptions and limitations provided for in paragraphs 1, 2, 3 and 4 shall only be applied in certain special cases which do not conflict with a normal exploitation of the work or other subject-matter and do not unreasonably prejudice the legitimate interests of the rightholder.

In addition, were I in a position to change the UK law, I would do so by adding a new section 28B to the Copyright, Designs and Patents Act 1988 as follows:

28B Format-shifting and space-shifting for personal use
(1) Copyright in a work is not infringed by any act by a natural person, provided that—
(a) the person has lawful possession or lawful use of a copy (“the master copy”) of the work,
(b) the act involves copying or adapting the work for his personal use,
(c) the act is not done for ends that are either directly or indirectly commercial; and
(d) any copies created by such an act are destroyed if subsection (a) no longer applies.
(2) If an accessible copy which would be an infringing copy but for this section is subsequently dealt with—
(a) it is to be treated as an infringing copy for the purposes of that dealing; and
(b) if that dealing infringes copyright, is to be treated as an infringing copy for all subsequent purposes.
(3) Where a person has lawful possession or lawful use of the master copy under an agreement, any term or condition in the agreement shall be void in so far as it purports to prohibit or restrict the making of any copy or adaptation of the work where the conditions in section 28B(1) are met.

In addition, it would be necessary to amend section 296ZA(2) as follows, to ensure that format-shifting could not be prevented simply by adding DRM:

(2) This section does not apply where a person does anything which circumvents effective technological measures—
(a) for the purposes of research into cryptography, or
(b) for the purposes of performing any act permissible under section 28B, does anything which circumvents effective technological measures,
unless in so doing, or through any related act, he affects prejudicially the rights of the copyright owner,

but these are only rough ideas; I am certainly no expert at drafting laws.

There is a more political take on this issue, including some of the arguments for and against format-shifting, on the Pirate Party website.


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