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Reform of outdated copyright laws has been a major campaign focus for ORG from day one.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.

Comments (9)

  1. William:
    Jul 30, 2014 at 09:44 AM

    This has indeed been an epic campaign, for ORG pretty much a life-long campaign, and a significant victory. Well done Jim and team, and before that Becky and Michael, and Suw who first grappled with this for ORG. Just off to watch the Downfall parody to celebrate.

  2. James:
    Jul 30, 2014 at 03:26 PM

    Great! So, is it now finally legal to put all my music on my iPhone, or do I need to wait for royal assent, or for the act to come into force?

  3. Dreamer:
    Jul 30, 2014 at 04:02 PM

    Surely if they can still challenge you if they have suffered some kind of 'loss of revenue', real or imaginary, then there's still a danger in any parody? After all, much parody is about criticism and you don't know in advance how successful or powerful something you create will be. And also, 'loss of revenue' sounds disturbingly easy to fudge or massage to show what they want it to show. So if I produce something that turns out successful - if it really takes off (as a meme or as a popular artistic work or whatever) and starts disturbing the tiger's tail as it were - surely I could still be open to a lot of bullying, whatever my original intentions? It just makes Baroness Neville-Rolfe's comments about "highlighting questionable business practice" ring rather unfortunately hollow. Not to take away from how welcome they are!

  4. Dreamer:
    Jul 30, 2014 at 04:09 PM

    And also not to take away from ORG's magnificent efforts in this area! We all owe you a lot for this!

  5. Ben Whorwood:
    Jul 30, 2014 at 04:20 PM

    Fantastic victory, well done to everyone at ORG and around the world for their hard work and spreading the word.

    Really great to have some positive news regarding copyright reform in the UK!

  6. Andy:
    Jul 30, 2014 at 04:45 PM

    That should read ATVOD. Where else in Europe do you have to pay a fee to be allowed to include video in your website?

  7. Andy:
    Jul 30, 2014 at 04:49 PM

    Well done in the campaign. Time to get rid of ATVOD now. My clumsy fingers have sent the correction and not the original miss-spelled message.

  8. jimbo:
    Jul 30, 2014 at 04:50 PM

    but for a lot of things, the industries are still in control. they are still preventing people from copying legally bought disks and i bet we in the UK will see a sudden increase in the number of disks that have anti circumventing technology, drm, built in. i also doubt whether the government will act when someone complains about being unable to copy their disk. perhaps i will be proven wrong, i sure hope so. i also doubt whether any change in this area will be addressed very promptly either, with the Govt dept taking an inordinate amount of time to process the requests. what always amazes me is that these industries are so wrapped up in preventing anyone from being able to copy things, they forget the harm they are doing to themselves and their industries. how 'blinded by greed' can anyone get??

  9. Martin Bannister:
    Jul 31, 2014 at 01:05 PM

    Congratulations on the long fought victory. I think this is most interesting for services like Google Music where your music can be uploaded, or bought, online and is essentially stored in the cloud, streamed to your devices or downloaded for offline listening. I know Google limits the number of times you can download the entire library and to listen to your music you have to be signed in with your Google Account so there is some control there. The service took a while to come out in the UK too so there was obviously some negotiation about the service with UK or EU copyright holders going on.

    Given that technology is the issue here, with cloud storage and more easily copied or ripped music, I don't understand why a more technological approach to this isn't being taken in the industry. If they're worried about private copying why not introduce a service where by you register your e-mail address and input some unique code from the CD packaging to be able to obtain a legitimate digital copy (something like ultraviolet is for films). With a cloud service like Google Music you could even limit the number of devices that are registered to that account (like Sky do with Sky Go) and have to de-register an old device to add a new one and have access to your music. There are lots of ways that copyright could be managed, most of which are already in use by some services, that wouldn't diminish customer experience or their ownership of the copyright material but would also negate the need for levies. A collaboration between the copyright stakeholder industries and technology companies like Google, Apple, Microsoft and others could also see the creation of an independent standard for this sort of 'e-mail centric' copyright management that would be device, platform and copyrighted material independent allowing copyright management to take place on anything, PC, TV, Phone, Tablet and whatever might be next.