Patry – British Copyright Industry’s New Perverse Copyright Theory

When one makes makes a private copy of a copyrighted work for non-commercial purposes, many Americans think of fair use and end the debate.

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

In Britain, the copyright industry is responding to what Americans would classify as “fair use” as something that should have a licensing fee.

The British government launched a public consultation which, while closed now, will be followed up by a 3 month consultation period on how to go forward with legislation. The question being brought up is exceptions to the copyright laws. One specific thing in particular that was rolled up with a number of other things being considered is private copying. According to the consultation paper which is still available in PDF and DOC formats on the consultation page, the following is currently being considered:

– Educational exceptions
– Libraries and archives
– Parody
– Format shifting
– Research and private study

Among the recommendations, there were:

Recommendation 8: Introduce a limited private copying exception by 2008 for format shifting for works published after the date that the law comes into effect. There should be no accompanying levies for consumers.

Recommendation 10b: Enable libraries to format shift archival copies by 2008 to ensure records do not become obsolete.

Recommendation 12: Create an exception to copyright for the purpose of caricature, parody or pastiche by 2008.

In terms of private copying, Bill Patry made particular note to the following paragraph found on page 2, paragraph 6:

It is proposed to create a new exception that would allow consumers to make a copy of a work that they legally own, so that they can make it accessible in another format for playback on a device in their lawful possession. The exception would apply to personal or private use. The owner would not be permitted to share it more widely (for example in a file sharing system or on the internet). Multiple copying would not be allowed.

Patry comments, “The proposed exception is very narrow. The consumer would have to own a legal copy. The format (and perhaps space)-shifting would have to a one-off and for personal use, and the copy would have to made for a device the consumer legally possesses. There are certainly more liberal approaches to format-shifting one could propose, but as approaches go, if personal use means anything it has to fall within this modest proposal.”

The MBG (Music Business Group) offers this contained within their response starting on paragraph 44:

The exception would then be qualified by additional provisions to enable the licensing of device manufacturers and distributors. This will be the mechanism for providing the compensation which the European Parliament and Council have clearly mandated in
the Copyright Directive of 2001 that creators and right holders should be paid in
exchange for such an exception.

The licence fee would be determined by commercial negotiations between creators
and right holders and manufacturers and distributors of devices substantially used or
marketed for making copies of music.

Collecting societies are and have been operating equivalent licensing schemes to
collect and distribute the licence fee to creators and right holders in a transparent and
efficient manner.

While this does seem rather straight forward, basically making Apple and other company that offers a device that is said to be able to copy music to pay rights holders royalties, Patry details something more sinister. In the third page of the report, there is an allusion to so-called “value” being brought to the consumer.

“What is the value produced by consumers? Aren’t those who use copyrighted works without permission or payment usually described as parasites, pirates, or thieves,” Patry asks, “and hardly as value-creators? And haven’t we been told for years that it is consumers, especially via P2P file sharing, that is the cause of the record industry’s decline?”

Patry answers that question: Behind the MBG’s new approach is a plan to pervert language in order to achieve an otherwise politically unacceptable result. The plan began in the summer of 2007, with what was called the Value Recognition Strategy (referred to in MBG’s submission to the UKIPO). The strategy was prepared by Capgemini consultants (no surprise there: copyright, like political campaigns, is now the province of focus group generated slogans and messaging), and is designed to examine the “value gap,” which is defined as the amount of decline in UK record sales since 2004.

He then points to an article on The Register which suggests that the record industry will take out their losses from piracy out on online digital music stores like iTunes.

So what is the Value Recognition Strategy, then? To go after iTunes as the Register article notes, but that means not shutting it down ��” since the site is licensed — but instead getting a cut of the revenue iTunes generates. There have been efforts to do this in the past, under the same value approach. For example, there have been efforts to obtain a cut of the profits from the sale of iPods. One head of a U.S. music company was quoted as saying with respect to this effort, “We felt that any business that’s built on the bedrock of music we should share in.”

This statement is indicative of why the corporate music industry is on its death bed: after the industry insisted in preserving a business model that consumers didn’t want (album sales), it fought the business model consumers do want (per song downloads) resulting in a flight to unauthorized services that gave consumers what they wanted (P2P), and then when someone else came along and saved the industry from itself by creating an authorized way to get consumers to pay (iTunes), the industry now insists that it is being ripped off, that it is being deprived of “value” that belongs to it.

He goes on to argue that the music industry is actually after getting a license fee for the making of a copy for personal use. Using a theory that suggests that making a copy provides “value” for the customer means that it’s “value” the industry should be compensated for to make up for alleged piracy going on in an iPod among any other music devices. It’s not really an attack on itunes as it is an attack on consumers who actually pay for music. Patry is hopeful that the British government rejects this theory.

Drew Wilson on Twitter: @icecube85 and Google+.

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