UK High Court Strips Away Short-Lived Private Copying Right, Buying Recording Industry's Demented Assertions

from the no-rights-for-end-users dept

It wasn't until late 2014 before the UK government finally (officially) allowed its citizens to make personal copies of their purchased music and movies. It was an uphill battle against copyright-reliant industries to bring the UK in line with exceptions available in other European countries. The recording industry threatened to fight this new exception in court, because of course it did.

So, it sued. And it got its way. It somehow convinced the UK High Court that people making copies of music they've purchased causes the industry harm. The resulting opinion is so lacking in logic and so thoroughly divorced from reality that the EFF is actually somewhat impressed by the audacity of the industry's arguments, as well as the court's willingness to follow them to these irrational ends.

Whilst accepting that the Copyright Directive does not require “that sellers must be able to extract the very last gram of value from the copyright,” the court found that the personal copying exception might have resulted in some loss of sales (for example, some hypothetical consumer might have refrained from buying an extra copy of their favorite CD for their car, in reliance on the new exception), and that the government had failed to present any evidence that these lost sales were zero or minimal.

This decision is so bad, that it isn't even wrong. Not because we think that the government did produce the economic evidence that the court was looking for, but because the fact the government should even be required to produce that sort of evidence before allowing users to make personal copies of purchased works shows how completely detached copyright law has become from the real world.

The fact that the industry can claim -- with a straight face -- that the private copies somehow cut record labels out of additional income is so ridiculous it veers into the realm of the bizarre. It continues to feel it should retain all rights to purchased products, even up to the point that it can deny people who have paid money for its products the option of making backup copies or format shifting it from physical-to-digital, or from device-to-device.

That a self-interested industry would claim this -- in the face of all reasonable logic -- isn't surprising. That a court would buy what the industry's selling is a bit more disconcerting. Both have drifted in the unintentional satire that is (most) of European copyright law, with the High Court following the overly-restrictive nature of EU court decisions -- ones that include ongoing (and increasing) "you must be a pirate" levies on devices and media.

The worst thing about this decision is that the court looked at the industry's malignantly overgrown sense of entitlement and said, "Yes. These are perfectly rational demands. Let's make sure no iteration of its products ever occurs without compensation -- despite having been paid for once already."

Demanding that each such lawfully-made copy be somehow carved into its own sliver of value, and ensuring that rightholders have been afforded the maximum opportunity to extract rents from that value, is nonsense on every level: it is administratively unworkable, acts as a barrier to fair use and innovation, and has no justifiable legal or moral basis as a matter of copyright policy.

Any arguments that copyright law -- at least the industry's interpretation of it -- has any basis in reality can be dismissed. The original purpose of copyright has been buried and the new purpose -- to provide as many endless revenue streams as possible -- is urinating on its grave.

Products these industries don't even make (CDs, hard drives, memory cards, etc.) have levies added to somehow offset piracy -- apparently the only purpose these items exist, according to the rationale behind these demands. Customers purchasing movies and music are similarly treated as thieves in order to ensure repeated sales across multiple formats, stripping them of any "rights" they might enjoy after spending their own money.

The EFF conjectures that maybe that UK copyright law's abysmal nadir is what's needed to get some real copyright reform kickstarted.

[P]erhaps a stupid decision like this is just what is needed to turn the temperature up a notch, and place more British users on the offensive. After years of lobbying for a free personal copying exception, its loss at the hands of the music industry clearly outlines the incursions that unbalanced copyright law makes upon users' freedom to make reasonable, private (and public) uses of copyright works. It's high time to bring European copyright law back into line with reality.

Reality isn't something the industry has much familiarity with. Its battles with technological advances have been mostly futile but increasingly tenacious. It will take any inch a government will give it, even if it means screwing its own customers over in the process. And it fights these battles like a doddering but vindictive patriarch, holding tight to its dwindling power even as its assertions are increasingly dotted with demented ravings.

Filed Under: copyright, exemptions, private copying, uk, uk high court, user rights