Des billets pour vous présenter la matière des droits d'auteur (et plus…)
Under the proposed modifications, copyright will not be infringed where an individual (Section 1):
The text goes on in saying that copyright will be infringed where an individual who has made a further copy of a copyright work pursuant to subsection (1) :
An individual will always be able to stores a further copy made pursuant to subsection (1) in an electronic storage facility accessed by means of the internet or similar means, where that facility is provided for his sole private use.
No contract can prevent or restrict the doing of any act permitted by the proposed modifications.
With this text, the UK Government would like to introduce in the UK Copyright Law a very very narrow private copy exception.
This narrow text will only allow an individual to copy content they own, and which they acquired lawfully, to another medium or device for their own personal use.
For example, it would allow people to copy a CD from their music collection onto their mp3 player or phone. However it would not allow them to make copies of their CDs and give them to other people.
The Government says that the « exception aims to align the law with behaviour most people consider to be reasonable, to remove unnecessary regulation, and to help build confidence in and respect for copyright ».
Private copying exceptions are permitted by Article 5(2)(b) of the Copyright Directive.
The exception applies only to copies lawfully acquired by the copier, who may not transfer copies to other people.
Following the UK Government, constraining the exception in this way « allows for appropriate compensation to be paid at the point of sale, and ensures the exception will cause minimal harm to copyright owners« .
The exception is drafted as Section 28A of the Copyright, Designs and Patents Act.
Subsection (1) defines who is permitted to make copies and under what conditions. These conditions include :
If technological copy protection measures are applied to a copy, the exception does not permit an individual to circumvent those measures in order to make copies.
The exception does not allow the making of copies for multiple people ether by transferring a copy made under the exception or by transferring the original and retaining the further copy.
An individual who makes a copy under this exception is permitted to store that copy in any private place, including a private cloud or other remote electronic storage.
Subsection (5) aims to prevent contract terms restricting use of this exception.
Amendments to Schedule 2 to the Act apply this exception to rights in performances to the same extent as it applies to rights in copyright works.
Individuals who are unable to access the exception as a result of technological copy protection measures applied to a work can complain to the Secretary of State.
There are one or two points that I would like to highlight here :
The UK Government has not the intention to introduce a compensation scheme. Even after having introduced this (narrow) private copy exception.
It is clearly against the 2001 Directive.
Art. 5.2.b says leave to the Member State the choice to introduce or not the private copy exception. But when a country introduces this exception, it has also to introduce a compensation scheme in the favour of the rightholders. The European text is crystal clear.
The governmental text is ambiguous on that point.
Indeed. Their commentaries below the text say that « Constraining the exception in this way allows for appropriate compensation to be paid at the point of sale, and ensures the exception will cause minimal harm to copyright owners. ».
What does that mean ?
There is a clear contradiction in this commentary. What does this « appropriate compensation » mean ? Remind that it is not the vocabulary of the 2001 Directive which uses « fair compensation » wording. And what does « at the point of sale » mean ?
The danger is the using of the « minimal harm » wording.
This expression refers to the Recital 35 of the 2001 Directive. This Recital says that « In certain situations where the prejudice to the rightholder would be minimal, no obligation for payment may arise. ».
The introducing of a private copy exception is a good thing.
It puts a end to a ridiculous situation. Thanks to all our electronic products, we can so easily copy CD, books, etc. But in UK, people who did that currently infringe copyright. Even if the copy is done for their sole private use.
But the way the UK government tries to solve this issue is scandalous.
Contrary to the European text, they don’t want to clearly compensate rightholders. They think that because the exception is so narrowly written it will only cause minimal harm to rightholders. But I don’t think i twill be the cause.
The problem is that the European Directive doesn’t explain its « minimal harm » expression. It is so leaving to Member States and at the end of the road to the European Court of Justice who will certainly have the final word on this.
Count on that.
By Axel Beelen