Open Rights Group Echoes Patry’s Concerns

Last Week, ZeroPaid reported on comments made by Bill Patry which suggests that the copyright industry is looking to make money off of private copying.

Note: This is an article I wrote that was published elsewhere first. It has been republished here for archival purposes

It seems that he isn’t alone on these concerns as the Open Rights Group told ZeroPaid that they agree with the concerns he expressed.

The posting by Patry suggests that the Music Business Group (MBG) is saying how a copy made by a customer who legitimately bought music is added value for the customer and value lost for the music industry. The theory known as the ‘reverse value’ theory appears to be headed into the direction of demanding royalties for format shifting, etc.

We here at ZeroPaid decided to ask Becky Hogge about all of this. Hogge told ZeroPaid, “Patry is right to caution UKIPO not to accept the MBG’s arguments: if UKIPO buy the argument that value to consumers means value lost to the recorded music industries then all exceptions to copyright law are threatened.”

She also pointed us to the Open Rights Group response (PDF) to the consultation process. Here are some of the highlights:

As the UK IPO notes, there is a distinct lack of evidence that current consumer practice around format shifting has a negative impact on sales of recorded music. This is in contrast to the evidence presented by the recorded music industry about the negative impact on sales of illicit sharing of copyrighted materials across peertopeer
networks (although we note in passing that this evidence is not uncontested). We note reports of evidence recently commissioned from the University of Hertfordshire by British Music Rights, which state that “the online problem is potentially dwarfed by ‘offline copying’” and that “[t]wothirds of people… surveyed copy five CDs a month from friends”. Notwithstanding the fact that we can expect the relationship between this activity and music sales to be nontrivial, such activity clearly lies beyond the scope of the proposed exception.

we note that the consultation is silent on backup copies. Given the centrality of backup to this model of practice, we believe this is a mistake. We recommend that the UK IPO consider framing the exception in terms of transferring content from one supporting medium to another, rather than in terms of transferring content from one format to another.

We do not think that an exception for “personal, private use” fully reflects the reality of consumers’ lives, and would prefer to see the exception framed in terms of domestic use, so as to incorporate the realities of format shifting in the context of familyowned computers, media centres, and car stereos. We would prefer to see terminology such as that adopted in the Culture, Media and Sport Select Committee’s 2007 report New media and the creative industries which recommends “a new [exception] permitting copying within domestic premises for domestic use (including portable devices such as MP3 players, and vehicles owned or used regularly by the household)”

With respect to rightsholders, we are concerned by statements put forward in the consultation paper with regards to technical protection measures (TPMs). Paragraph 114 of the consultation paper states that “The exception would not affect right holders’ ability to incorporate DRM or technical protection measures into their work”. It seems odd that, after extensive consultation on the exception, not to mention democratic debate in Parliament during the legislative process, the UK IPO would be happy to see this exception overridden by technical fiat.

The paper is a recommended read, especially for those living in Britain, and contains many other important issues raised by the Open Rights Group. The group notes many important studies including one study held in the US that suggests that “Fair Use” exceptions pumped $4.5 trillion into the US economy (PDF). Of course, this is just one of many studies that were conducted to back up Open Rights Group’s arguments that private copying with respect to things like format shifting and time shifting should be legal.

The Open Rights Group also agreed with the UK IPO’s assessment of the “Berne three step” test. The three step test can be found in the TRIPs agreement. WikiPedia shows what it is exactly:

Members shall confine limitations and exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the rights holder.

In closing, The Open Rights Group notes that the UK IPO didn’t address recommendation 11 which says “propose that Directive 2001/29/EC be amended to allow for an exception for creative, transformative or derivative works, within the parameters of the Berne Three Step Test” They say that they regret how the UK IPO didn’t address this given the potential of transformative works for the creative community in the digital age.

All in all, an excellent and recommended read.

Drew Wilson on Twitter: @icecube85 and Google+.

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