Tuesday, 9 August 2011

The criminal act of enjoying music

People who should know better, including firms of lawyers using tabloid techniques (here, for example: it makes me almost as angry as the expression "copyright theft"), are hailing the fact that the government proposes to adopt the Hargreaves Review's recommendation to introduce an exception to copyright so as to permit format-shifting - which they say will mean that people who engage in this nefarious activity will no longer be criminals. What rubbish. They never were criminals if they did it for their own purposes - Hargreaves does not come close to suggesting that the law should be changed so much as to allow anything so egregious as to be criminal. Copyright offences entail making or dealing in copies in the course of a business.

The House of Commons Select Committee on Culture, Media and Sport heard from the BPI in evidence for its Fifth Report that the industry took a relaxed view about format shifting, back on 7 June 2006. Five years ago! You can read the minute of oral evidence here and a bit more digging will unearth written evidence too. Here is the key question and answer:
  Q134  Mr Hall: I have got the extensive Rolling Stones collection on vinyl. If I wanted to copy that onto a CD to listen to it in my car, it is my private collection, British copyright law does not give me an exemption to do that, but in your evidence to the Committee you said you did not think there would be a need to change the law. Can you explain why?
  Mr Jamieson: This is a very key point and I think we should clarify it slightly, because we have moved on in our thinking since the written evidence. Traditionally the industry has turned a blind eye to private copying and used the strength of the law to pursue commercial pirates, and it has worked very well for all. There are two changes really which have caused us problems. One is, the quality of copying via digital is now so much better than ever it has been; and, secondly, the ability to disseminate a copy that is made illegally via the internet or any number of ways is so easy, including on a global scale, it is very, very damaging to music. We are having to rethink the distinction that we used to employ between a commercial pirate and a private copier, and I think it is quite correct to say that we are unhappy at the moment, that we think there needs to be a new distinction drawn between those who copy purchased music for their own private use and those who pass music on. We believe the latter must remain an infringement and we believe that we have to authorise the former; in other words, to make the consumer unequivocally clear that he has the right to copy any music that he buys for his own use, multiple, from format to format, anything at all that he wishes to do for his own use he is able to do. We are in discussions with other sectors of our industry at the moment, and indeed our own members, to try to get a consensus position on how best this can be achieved, to leave the consumer sure that he is allowed to copy, that you can copy your Rolling Stones collection, that Nigel Evans, who has just bought an iPod is able to take his CDs and put them on the iPod. You are correct in saying it is all technically illegal currently, but that is not right, because we are happy with it, we think it should be allowed and we think it is possible to do it via authorisation from the copyright owners and rights holders, rather than by rewriting the law. That is our current position, but it is still very, very much a matter of discussion and obviously it is something we are going to be taking to Gowers.
So, why are we still even wondering about legislation to legalise something that not only isn't criminal, is actually authorised by the copyright owners? Because copyright is more about urban myth than about hard law? In preparing my most recent podcast (subscription information on the podcast page of this site!) I read this  on the Patent Office - whoops, Intellectual Property Office - website, and am very much taken by the concept of mottainai (もったいない). It seems to me that it applies to this whole sterile debate: what a waste. Which makes writing blog posts about it mendokusai (めんどくさい).

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