July 30, 2014 | Javier Ruiz

Victory: format shifting and parody clear last hurdle

After nine years of campaigning, we have finally done it. The House of Lords yesterday cleared the last hurdle for parody and private copies to be legal under copyright law in the UK. Several new limitations to update copyright were agreed in June, but private copying, often called format shifting, and parody were held back, creating fears that they might be dropped.


Reform of outdated copyright laws has been a major campaign focus for ORG from day one. We asked for these changes when the then Labour government launched a major health check up of copyright law in 2006, the Gowers review. Pressure from industry lobby groups stalled the reforms proposed at the time.

It has taken nine years, and another comprehensive review of copyright by Professor Ian Hargreaves, to get these proposals agreed. We engaged in many rounds of detailed consultation, argued for the changes in round tables and meetings, and got people to sign our petitions and create infringing parodies at righttoparody.org.uk.

  

So we had fun. But what have we won?

For most people copyright is an arcane subject. Our friends and family aren't even aware that by copying their own legally purchased CDs to their iPod or that by making spoofs such as Downfall parodies, they have been breaking the law.

But copyright has immense implications for the functioning of the Internet and digital technologies.

The proposed reforms are quite modest. Despite protestations from industry about the potential impacts of the new parody exception, the law has very strong constraints. It is framed as a fair dealing exception, meaning that by definition it will only be acceptable if it has no negative impact on the revenues generated by the original. In addition, the exception does not affect any moral rights the author may claim, for example around derogatory treatment.

We will have to make sure the new parody right can be used and isn’t inappropriately challenged in the courts. But it has to be said that getting parody onto the statute book is a major achievement for the government and those who supported the proposal, including campaign groups, and comedians and YouTube parodists who joined us in our campaign. It was striking in the debate how many of our arguments were put forward by Baroness Neville-Rolfe for the government:

Online creative sites, which are about building grass-roots creativity, have told us that they have encountered sometimes insurmountable issues with lawyers and copyright owners over the years. A generation of people who are the bright new talents in the UK’s creative industry started out by posting their work online, including Ben Wheatley, director of the hit film “Kill List”.

One of the ways that campaigners are able to highlight questionable business practice is by parodying a company’s own brand or slogans. Yet as the law stands, to do so carries considerable risk of legal action and with it the risk of campaign materials being blocked from publication. The Government believe it is time to change the law. The proposed change enjoys wide support: from British broadcasters, production companies, creators and performers; from campaigning groups; and from centres of learning, as the ability to re-edit copyright works in new and experimental ways is an important learning exercise for building creative skills.

The new private copying exception is also relatively modest, although again a very significant step forward for the UK.

The exception is limited to personal use of lawfully obtained originals, and does not allow any sharing of the works, including with close family members. It also does not allow for the removal of any anti-copy technical protection measures, including those found on most DVDs and Blu-Ray discs. Given most media consumption is moving to a pure digital environment constrained by such measures, it remains to be seen how effective the new right will be in practice. How many people will be ripping CDs in ten years time?

Copyright law has a mechanism which allows you to ask the government to force the removal of excessive anti-copy measures when they inhibit your rights, but it will take a considerable fight to see this applied to private copying. At this point we don’t know the legal arguments that rights holders or the government might apply to resist requests.

Thankfully, the exception allows people to keep copies stored in personal cloud services. This has caused major consternation among rights holders, meaning industry bodies not creators, who were probably hoping to be able to impose a tax on cloud services.

Industry demanded to be compensated for this new right to personal private copies. To the uninitiated this may sound slightly insane: who would pay twice to rip a CD? Of course, this would have seemed more logical back in the first days of cassette tapes, when industry really did fear that ‘home taping is killing music’. But for many countries, the principle of compensation in return for private copying is very embedded, and often a significant revenue stream for collecting societies. Levies can be charged on paper, printers, hard disks and blank media. The UK has understandably baulked at the idea, which is probably the biggest reason why it has been so difficult to introduce a private copying exception into copyright law. The Government can’t accept levies, and rights holders won’t accept private copying without them.

The principle of compensation is established in EU copyright law. The directive on Copyright in the Information Society says that rights holders should be compensated for the introduction of any private copy exceptions. But—and it is a big but—only for any actual loses.

The government's argument is that legalising private copies that in most cases were already taking place does not incur additional loses. Any previous loses had already been incorporated into the market, so any new compensation would in fact provide additional income to copyright holders.

Industry has begrudgingly understood that this time they will not force the government to budge, as eloquently expressed by Lord Stevenson of Balmacara when he withdrew his amendment to the exception yesterday. But copyright holders will be looking for any evidence of losses to take the UK government to court in Europe to force a new tax, possibly on cloud services.

They should think twice. Levies are unpopular. The copyright industries, like any, have a social compact with the public. Copyright needs to be seen as reasonable. Levies easily get out of hand, and become embedded in legal systems, whether or not they really represent compensation for actual damage.

This brings us to the wider point. The net effect of these exceptions will be a stronger, more flexible and more legitimate copyright regime, which can only be to the genuine benefit of rights holders. This makes you wonder how good rights holder lobby groups are at representing their own interests. They have argued extremely strongly against the package of reforms, saying they will undermine and weaken copyright as a whole.

Like many industry lobby groups, the copyright lobby groups confuse profits and control with their strategic interests. A public interest copyright policy serves everyone's interests, by balancing the rights of copyright holders to profit from their work with the rights of citizens to freedom of expression and access to information and culture. These exceptions are a step towards a system that reflects that, and we should be proud that we helped copyright move in the right direction.