Out-Law News | 28 Mar 2014 | 5:23 pm | 3 min. read
The UK government has laid out five draft statutory instruments containing regulations that would, if backed by the parliament, update existing rules on exceptions to copyright from 1 June this year.
Under one set of the regulations, individuals in the UK would be given a new right to make a copy of copyrighted material they have lawfully and permanently acquired for their private use, provided it was not for commercial ends, without being said to have infringed copyright holders' rights. However, making a private copy of a computer program would still be prohibited under the plans.
The new private copying right would allow individuals to copy music from a CD they have purchased onto an iPod or other music playing device they own, or make a back up copy of a film, for example. In addition, the new right would allow individuals to make a private copy of copyrighted content so as to store the material on cloud computing servers, according to the proposals.
However, the draft regulations, which can only be approved or rejected and not amended at this stage, give rights holders freedom to deploy "restrictive measures" to prevent copying of their works for private use.
A 'restrictive measure' is defined as "any technology, device or component designed, in the normal course of its operation, to protect the rights of copyright owners, which has the effect of preventing a copyright work from being copied (in whole or in part) or restricting the number of copies which may be made".
Under the plans, consumers could raise complaint about any restrictive measures deployed by rights holders with the UK's Business Secretary who would have the power to order rights holders to allow individuals to exercise their right to a private copy of the works.
However, in making such an assessment the Business Secretary would have to assess whether in fact the measures rights holders have deployed are reasonable on the basis that rights holders can restrict the number of personal copies which can be made of their material and with a view to "whether other copies of the work are commercially available on reasonable terms ... in a form which does not prevent or unreasonably restrict the making of personal copies".
"It will still be against the law for consumers to make copies for friends or family, or to make a copy of something they do not own or have acquired illegally, without the copyright owner’s permission," the government said in guidance for rights holders (12-page / 354KB PDF) that it has published alongside the draft regulations. "You will also remain able to control the copying of your works using copy protection technology."
Intellectual property law expert Emily Swithenbank of Pinsent Masons, the law firm behind Out-Law.com, said: "The new private copying right will legalise actions which the majority of the public generally would not have realised were unlawful. However, the right does not permit people to make private copies of works and give them away to family or friends. It remains to be seen whether the public will be aware or understand the limitations to the new right."
Swithenbank also said that there is an element of uncertainty about how heavily the new complaints procedure against the "technological protection measures" rights holders deploy, envisaged under the new rules, will be used.
"I suspect that how heavily the complaints procedure is used will depend largely on whether consumers are made aware of its existence and their right to use it," Swithenbank said. "If it is well publicised then it is likely that with time the government will be inundated with complaints that will need to be filtered. It is likely that in the majority of cases, rights holders would receive directions from the Business Secretary only where the restrictive measures they used were the subject of numerous complaints."
The other changes proposed would introduce new rights around archiving of copyrighted material and the use of such works in non-commercial research and educational settings. In addition, other proposed new exceptions would create rights to use copyright material in works of parody and in quotations.
The government had intended for the new copyright regulations to come into force from 1 April following parliamentary approval, but David Willetts, a minister within the department for Business, Innovation and Skills (BIS) confirmed earlier this month that the reforms were likely to be delayed. At the time he said "technical changes" were being made to previous proposals on the exceptions following comments made during a previous public consultation on the reforms.