That’s right ladies and gentlemen! You may now take that cumbersome CD collection you have to carry around everywhere with you and rip the music onto your computer or portable media playing device for your own personal use! I have a feeling these newfangled “Em-Pee-Three-Players” are really going to take off now that the UK has decided to implement reforms to the Copyright Law in this area… What’s that you say? You’ve been ripping CDs onto your computer and playing them of MP3s and phones for years? Well then, you sir or madam have (technically) been a filthy copyright infringer, and will remain so until June of this year.
Furthermore, perhaps even more surprisingly, there will now finally be a parody exception in UK Law – sexily named “The Copyright and Rights in Performances (Quotation and Parody) Regulations 2014 – including Parody, Caricature or Pastiche”. You know those Youtube videos which use copyrighted film clips, music videos, music and audio for comedic, particularly parody, purposes? Have you ever perhaps noticed that they tend to be defended from copyright infringement under the term “fair use”? (Allow Hitler to explain if for you). It might shock you to learn, but “fair use” doesn’t really exist in the UK and Ireland, despite what an angry Youtube commenter may think. (This was explained wonderfully by my old Professor Eoin O’Dell at the Electric Picnic music festival in a field in the middle of Ireland several years ago). In the US, “parody” falls under the “fair use” exceptions to copyright, this copyrighted material can be used quite broadly for the purposes of comedy. And although comedy seems to be one of the few continuing successful export markets for the Irish, and the British have a long history as masters of parody, we have in fact not had a robust comparable “parody” exception in our copyright laws.
Rip-Roaring Copyright Reform
Now, to be fair, I shouldn’t really be having a go at the UK for this delayed approach to law reform in the digital world, this is an epidemic problem in any area in which technological innovation outpaces legislative reform. This is simply a particularly amusing example of where the letter of the law lags far behind the practical reality. Most of us will notice that it in fact has been relatively easy in the UK to rip CDs, and MP3 players, audiobook readers and other such portable media storage and players have in fact been able to operate without encountering too many problems. Nonetheless the point remains that under the previous (well, current, until June) legislation, due to a strict understanding of Copyright Law, it remains illegal to make a “copy” of the music on a CD. This stands to reason – if you copy a CD onto your computer, you then have two copies of it, one on the CD and one on your computer. Now, the fair reason for this is simply practicality and portability; perhaps you want to be able to listen to your music without having to keep changing CDs, or you want to be able to listen to your music copied onto an MP3 player, rather than to have to carry around all of your CDs and a CD-player. This sort of use, “format-shifting”, is exactly what the legislative reforms in the UK are attempting to address. Of course many of us can also surely recall incidents in which we copied a CD onto our computers or MP3 players and then gave the CD to a friend to do likewise, thus creating a truly copyright-infringing copy – this remains illegal, as, to be fair, it most likely should.
According to current law, it is also illegal to format-shift an ebook you’ve bought from one device to another. Under new exceptions to copyright law, first initiated by the 2011 Hargreaves Review, people will be no longer be committing copyright infringement by format-shifting copies of CDs, ebooks or films they have bought. This might well have the biggest impact in the world of DVDs, as (certainly in my experience) it is that bit harder to find a program which will rip a film onto your computer from a DVD than it is to use the standard media playing software which comes with your computer to rip music CDs. The reforms make it clear that as long as the copies are purely for personal use, a DVD should be allowed to be ripped onto your computer also. Most importantly, this could have a serious impact on the area of DRM, “digital rights management”, those pesky technical measures the creators and sellers of music, video, ebooks and video games (though video games are not covered under these reforms) use to hamper or completely block you from creating backups or format-shifted copies of their products. It is important to remember however that, controversially, the circumvention of technical DRM measures is in fact illegal in the UK (similarly in the US under the DMCA), under the rather convoluted and technical Section 296 of the UK Copyright, Designs and Patents Act 1988. Specifically of note is:
Devices and services designed to circumvent technological measures
(1)A person commits an offence if he—
(a)manufactures for sale or hire, or
(b)imports otherwise than for his private and domestic use, or
(c)in the course of a business—
(i)sells or lets for hire, or
(ii)offers or exposes for sale or hire, or
(iii)advertises for sale or hire, or
(d)distributes otherwise than in the course of a business to such an extent as to affect prejudicially the copyright owner,
any device, product or component which is primarily designed, produced, or adapted for the purpose of enabling or facilitating the circumvention of effective technological measures.
(2)A person commits an offence if he provides, promotes, advertises or markets—
(a)in the course of a business, or
(b)otherwise than in the course of a business to such an extent as to affect prejudicially the copyright owner,
a service the purpose of which is to enable or facilitate the circumvention of effective technological measures.
(3)Subsections (1) and (2) do not make unlawful anything done by, or on behalf of, law enforcement agencies or any of the intelligence services—
(a)in the interests of national security; or
(b)for the purpose of the prevention or detection of crime, the investigation of an offence, or the conduct of a prosecution,
and in this subsection “intelligence services” has the meaning given in section 81 of the Regulation of Investigatory Powers Act 2000.
(4)A person guilty of an offence under subsection (1) or (2) is liable—
(a)on summary conviction, to imprisonment for a term not exceeding three months, or to a fine not exceeding the statutory maximum, or both;
(b)on conviction on indictment to a fine or imprisonment for a term not exceeding two years, or both.
(5)It is a defence to any prosecution for an offence under this section for the defendant to prove that he did not know, and had no reasonable ground for believing, that—
(a)the device, product or component; or
enabled or facilitated the circumvention of effective technological measures.
The new reforms however seem to indicate that although the circumvention of valid DRM measures should remain illegal, it should be harder for rightsholders to implement strict DRM measures, as they will either need to provide reasonable methods of allowing backups, format-shifting and other fair forms of copying, or the Intellectual Property Office (IPO) says that if the DRM is too restrictive, consumers can raise a complaint with the Secretary of State, as previously under Section 296ZE of the Copyright, Designs and Patents Act 1988, but with the new exceptions, it may be easier to succeed in such a complaint. As Wired.co.uk points out:
If a user complains that they cannot benefit from the exception due to a “technological measure” (DRM), the Secretary of State is empowered to “give directions to copyright owners to enable the complainant to benefit from it”. That is to say that a movie studio may be forced to make it easier for individuals to copy their DVDs for personal use.
Yet there is already criticism of these heralded “reforms”, in that they might not actually prevent the use of overly-restrictive DRM at all, and that the step of needing to lodge a complaint and hope that the Secretary of State does something about it doesn’t inspire much confidence for meaningful reform. Furthermore, some argue that these changes, the last wave of the much needed reforms suggested by the Hargreaves Review, have been implemented badly and could lead to a number of problems:
The changes create huge ambiguities, as they forbid contract law from over-riding the new legislation – which is in likelihood unconstitutional. Richard Mollet of the Publishers Association gave an illustration:
“The legislation says – and it’s in most of the five statutory instruments published yesterday – is that nothing in a contract that purports to restrict this act is enforceable – so I can’t enforce the contract terms. At the same time, it says a publisher should be able to restrict access. So which is it?”
As mentioned above, this reform is perhaps not as revolutionary as it immediately sounds -such reforms have been taking place piece by piece since before 2011, but in greater frequency since the publishing of the Hargreaves Review in that year (which itself was preceded by the Gowers Review in 2006, which made many of the same suggestions but was for the most part ignored) – but it does show that, rather shockingly, the legislation is only now officially coming into conformity with the everyday practical reality of digital media and consumer expectations. Digital Spy report that business secretary Vince Cable said the legislative change was “not only common sense but good business sense”.
“Bringing the law into line with ordinary people’s reasonable expectations will boost respect for copyright, on which our creative industries rely…
We feel we have struck the right balance between improving the way consumers benefit from copyright works they have legitimately paid for, boosting business opportunities and protecting the rights of creators.”
Under the updated law people should also be able to legally store copies of their music and movies in the cloud, though this may prove to be more difficult to square with the law than the UK Government think. However, they have stressed that giving others access to your files and allowing truly copyright infringing copies to be made will, of course, remain illegal.
The Protection of Parody
Although the spectacularly odd lack of a parody exception in the UK and Ireland could be the subject of an entire article of its own, I will attempt to briefly address it here too; especially since the internet seems so preoccupied with reporting the amusing fact that something we have been doing for years (ripping CDs) is no longer illegal, they have missed out on the importance of this similarly interesting development. For shame internet, for shame. After everything parody videos have done for you.
The draft statutory instrument governing parody can be found here, and the most important change reads thus:
5. (1) After section 30 insert—
“30A Caricature, parody or pastiche
(1) Fair dealing with a work for the purposes of caricature, parody or pastiche does not infringe copyright in the work.
(2) To the extent that a term of a contract purports to prevent or restrict the doing of any act which, by virtue of this section, would not infringe copyright, that term is unenforceable.”
(2) In Schedule 2, after paragraph 2 insert—
“Caricature, parody or pastiche
2A. (1) Fair dealing with a performance or a recording of a performance for the purposes of caricature, parody or pastiche does not infringe the rights conferred by this Chapter in the performance or recording.
(2) To the extent that a term of a contract purports to prevent or restrict the doing of any act which, by virtue of this paragraph, would not infringe any right conferred by this Chapter, that term is unenforceable.
(3) Expressions used in this paragraph have the same meaning as in section 30A.”.
This instrument also contains some slightly less important sections referring to the use of quotations for the purpose of parody, but, as you can see from the text quoted above, the entirety of a copyrighted work or performance may be used “for the purposes of caricature, parody or pastiche”. Most importantly, and perhaps controversially due to the restrictions on freedom of contract, is Section 30A(2) which states that any terms in a contract which might seek to restrict these rights will be unenforceable.
It will be interesting to see exactly how this parody exception in UK law plays out. It is possible that this seemingly clear and comprehensive exception for parody, enshrined in legislation, could indeed provide an even stronger protection for works of parody than in the well established US concept of “fair use”. However this will depend very much on how far the UK courts go in interpreting “parody” and what exactly should be protected under this heading. The bloggers over at IPKat are critical of the way this parody exception has been introduced to UK law, because it has been phrased in the unnecessarily restrictive terms of “fair dealing”. They further lament that “the changes to the CDPA will have no impact on the law or libel or slander, and will leave unaffected the regulation of UK moral rights, including the right of integrity.”
The legislation itself and the IPO website point to the explanatory memorandum for those who seek further information on these approaching changes, as well as full impact assessments of their implementation.
The Gowers Review of Intellectual Property, published December 2006
The Hargreaves Review of Intellectual Property and Growth, (or Digital Opportunity – A review of Intellectual Property and Growth), published May 2011
“UK Copyright Law Will Allow CD and DVD Ripping This Summer“, Game Politics,
“Changes to copyright law and guidance“, IPO.gov.uk
IPO Press Release, “Government takes important step towards modernising copyright“, Gov.uk
Mark Langshaw, “UK law change permits CD ripping“, Digital Spy
Mike Masnick, “UK Finally ‘Legalizes’ CD & DVD Ripping… But You’re Still Not Allowed To Circumvent DRM“, TechDirt
Andrew Orlowski, “No, Minister. You CAN’T de-Kindle your eBooks!Or can you? Confusion reigns as gov bungles copyright proposals“, The Register,
Dave Parrack, “10 Of The Funniest Song Parodies Of All Time On YouTube“, MakeUseOf,
Olivia Solon, “It’s no longer illegal to rip CDs“, Wired.co.uk,
“Hitler reacts to the Hitler parodies being removed from YouTube” http://youtu.be/kBO5dh9qrIQ