Copyright, common sense, and copying

For a few brief months, it looked as if the UK had finally recognised the reality that most people who own computers make copies of their own audio CDs, DVDs, etc. This was the result of regulations which came into force on 1 October 2014, establishing that the making of such copies for personal use, and non-commercially, was permissible under UK and European law.

However on 17 July 2015, a High Court judgement quashed those regulations, because they did not include a scheme to compensate the ‘music industry’ for the “harm” that might be caused by such private copying. That case was brought jointly (as claimants) by BASCA (the British Academy of Songwriters, Composers, and Musicians), the Musicians’ Union, and UK Music, a limited company which act as an ‘umbrella organisation’ to represent the interests of a membership including AIM, BASCA, BPI, PRS for Music, MMF, MPG, MPA, the Musicians’ Union, PPL, FAC, and the UK Live Music Group.

If you are of a mind to read the full judgement which was handed down, it is here.

What is surprising there is that the ‘music industry’ sought to obtain a judgement that declared “that the making of private copies of musical and other copyright works without consent, in the circumstances purportedly authorised by the Regulation, constitutes and has continued since 1 October 2014 to constitute an infringement of copyright.” Not content with criminalising copying now, it wanted to make it fully retrospective.

(Interestingly, the US has a similar legal problem, in that its copyright law does not explicitly permit the making of private copies, but at least their ‘music industry’ has stated that such personal copying would not normally result in any legal action. Perhaps it would make better sense for such decisions to be made on the basis of statute law rather than industry opinions.)

Central to the ‘music industry’s’ claim, and the reason for the regulations being quashed, was that they want compensation for the “harm” caused by legitimising the making of such personal copies. Had the regulations imposed a hefty levy on blank optical media, for instance, which was to be paid to the ‘music industry’, then they might perhaps have been assuaged and let them remain in law.

So the most important question is what “harm” the ‘music industry’ in the UK suffers by such personal copying.

Back in 2006, the UK National Consumer Council undertook a survey which concluded that 55% – a clear majority – of adult British consumers admitted to having made copies of audio CDs. Over the decade since then, I cannot believe that the proportion has reduced significantly, and given the proliferation of computers during that period, if anything I suspect that this majority has grown considerably. I cannot think of any person known to me who has a computer and has not copied audio CDs for their personal use.

Under existing copyright law, now that our brief glimpse of good sense has been shuttered by this judgement, the majority of the UK adult population has broken that law, and will continue to do so.

This is hardly surprising, as the ‘music industry’ does not appear to have taken any steps to offer us a licence to make such personal copies. Or if it has done, it has kept remarkably quiet about such licences. Neither has it ever attempted to offer us products whose licence permits personal copying, paying a small premium for its legitimisation.

Perhaps that is not what the ‘music industry’ is really interested in, as it would involve so much effort on their part. Perhaps it would just be simpler for the UK government to hand them over a few tens of million pounds of tax revenues each year to compensate for any “harm”.

I think that the government would do best to leave the law unchanged. Any law which turns the majority of the UK adult population into criminals is clearly so utterly nonsensical and unenforceable that it is, as the old adage says, “an ass”, as asinine perhaps as a law trying to ban encryption. And until the ‘music industry’ comes up with a more honest way of addressing that problem, they should not profit by it.