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).

The Hargreaves Review in detail: Copyright exceptions

Thank goodness, the Big Thing that the Prime Minister seemed to be hoping for from Hargreaves was rejected by the Review: a "fair use" exception to copyright. Do the many people who seem to think this is unfortunate understand the exceptions we already have in our law, I wonder? (And at a time when judges are being criticised for fashioning a law on privacy from the legislative clay of the Human Rights Act does anyone really want judges elaborating new exceptions to copyright protection?) They don't fall far short of fair use anyway - and being more precisely targeted there's less danger of collateral damage.

The important issue is that new technologies enable us to use copyright material in new ways - ways which don't necessarily prejudice the economic interests of the copyright owner, and therefore have no effect on the incentive to create. Format shifting is a case in point: the economic interests of the copyright owner should be exhausted once an individual has paid for an authorised copy of a recording. The buyer (who probably thinks of himself or herself as the "owner" of the "music", a misconception that the law could usefully try to find ways to dispel) ought to be free to rip the recording from the CD to put a copy on their personal digital device - free also to make a digital recording from their vinyl record collection. Although the last Government promised a new exception to allow these activities, it failed to deliver and in the UK, unusually, copying lawfully purchased material to other formats remains unlawful without a licence - which the record industry has expressly given, via its trade body. Still, a legal exception would be better than what we have at present.

The reason this remains an outstanding issue is that it is so difficult to define the scope of an exception within the constraints of the information society directive (which is increasingly being called the Copyright Directive, as if it were the only one and had comprehensive coverage) and without introducing a levy system, something successive governments (since at least Mrs Thatcher's) have refused to countenance.

There will also - if the Review be implemented - be a new exception for parody. I firmly believe that in the field of literature and art parody requires no exception: a good parody involves nothing remotely like copying. In music it's more complicated, but a licensing regime would surely be preferable to allowing free use for purposes that fall within the hard-to-define category of parody. Where the parody consists of setting new words to someone else's music, the person availing themselves of the musical work should do so on proper terms - although the copyright owner's right to prevent it should be based only on moral rights (an area which Hargreaves didn't get into, but which could usefully be tightened up in this area). Video as parody seems to be the hot topic at present, and Newport State of Mind the paradigm case - removed from YouTube at the behest of the copyright owner. Shame on you! What harm was it doing to the copyright owner's interests? And over and above that, if a royalty had been paid for the use of the music, I can't see how there could be any realistic objection.

Less contentious will be the proposed exception for non-commercial research for text mining and data analysis, freeing up the results of academic research - making usable material which has often been paid for by the taxpayer and which should therefore be available for general use, not locked away in the vaults of whoever created it (or employed the creator). Non-commercial it would have to be, given the limits of the Directive, and this would deprive it of a lot of useful effect, but I hope the problem is not in any event a big one given that copyright has no business protecting information, or databases given the high-level requirement for originality in that field (which the Court of Justice suggested in Infopaq should, via the information society directive, be applied more generally in the copyright world - a Good Thing, I think, but one that seems to have escaped comment from the Review).

Finally, libraries and archives should have wider rights to make copies to preserve material in their collections - extending the existing rights to audiovisual works and sound recordings. Having been involved with a priceless archive of sound recordings on deteriorating tapes, I can certainly applaud that idea.