For well over ten years we have been arguing about a private copying exception, to legalise everyday consumer behaviour of copying music to computer disks. Despite the fact that copyright industry groups have always said they'd never sue anyone, they claim that an exception would cause substantial damage that requires compensation.
Right now, both the private copying exception and parody appear to be delayed. The draft Statutory Instruments are now being discussed by a joint committee and the government in a rather opaque process.
The argument from publisher lobby groups is that European law requires compensation for economic harm arising from copyright exceptions. The UK government has so far, reasonably, argued that any harm would be minimal. Negligible might be more accurate. The change to the law would have little impact on people's behaviour. It would merely legalise what many people already do, copy the music they have legally bought from one device to another.
So what would the damage be? How many people will stop buying second copies of music if an exception is introduced? Probably nearly nobody, we imagine.
To put it another way, how much should you have to pay for a private copy of your own music and films? The BPI says that a private copying exception “fair compensation must be granted to rights holders”. UK Music says that “the exception cannot lawfully be made without fair compensation”.
The British Copyright Council says that "The private copying exception does not include a fair compensation mechanism as required by EU law (Article 5(2)(b) Information Society Directive); the harm by private copying is neither minimal nor priced in [to existing sales] … The BCC supports the introduction of a private copying exception for protected works in the UK, but any such exception should provide for fair compensation to rights owners which is limited to copying from physical products.”
What could compensation look like? In Spain, 2008-11 any “non excluded” hard disk paid a €12 levy; a mobile phone paid €1.10; a 70ppm photocopier €227. Multifunction printers paid from €7.95 to €10. They excluded disks that were used to boot computers.
It is hard to see charges like this as anything except a tax on innovation and investment. It could easly affect mobile phones, tablets, portable hard disks, hitting the cheaper end of the market and poorer customers especially hard.
The Spanish law was killed in 2011 after massive pressure. Over 3 million Spaniards signed a petition to kill it. We're certain the UK doesn't want that fight. But will they bow to lobby pressure, and kill the private copying exception to avoid a fight over an ipod tax?
No politician is likely to agree to a levy for damage that barely exists, in return for a change in the law that merely reflects real behaviour that nobody is going to be prosecuted for. The real victim will be the legitimacy of copyright law: yet again, the copyright lobby groups are resisting change that could improve the perception of their industry and the laws that support it.