British music industry says no to private copying

(via Out-Law). The Music Business Group, which brings together all of the collective music industry associations, has issued its Response to UK IPO consultation on copyright exceptions. Just when you think that the music industry cannot sink any lower, they go and surprise you with documents like these. Amongst the many things covered, the music industry seems determined not to give up the prohibition on private copying existing in the UK. For readers outside of these shores, UK copyright law does not allow for private copying, so every time I rip my CDs into my iPod I am infringing copyright. I know, it is a barbaric legal quirk, one of those outdated legislative fossils that comes to us from the time of tape recorders and 1200 b/s modems.

The UK IPO is conducting a consultation to implement the recommendations of the Gowers Review with regards to private copying, namely, that there should be a strictly limited ‘private copying’ exception to enable consumers to format-shift content they purchase for personal use. The MBG does not seem to like this, and their recommendation is:

“We need to redress the balance which underpins copyright – one that allows consumers to enjoy their music, drives technological innovation, yet recognises music creators’ and right holders’ place in this market. Our proposal creates an easily-implemented, flexible, futureproofed and transparent solution: an exception subject to licence.”

How is this licensing scheme going to work? The MBG wants to impose a levy on manufacturers of “devices substantially used or marketed for making copies of music.” I am guessing this would include CD-ROM and DVD-ROM manufacturers, as well as digital players. It is also possible that this levy will then be transferred to the consumer as increased cost, in which case we would end up paying for it.

The reasoning leading to the proposal is bizarre to say the least. The BMG recognises that a lot of the music in digital players is the result of format shifting. They cite research by Music Ally which shows that 51% of music in digital players is from owned CDs, while only 9% is purchased, which leaves 40% of unpaid music.

Music in digital players

This is one of those half-full half-empty moments. If you wanted to be positive, you would say that this is a great finding for the music industry, as it is evidence that 60% of the content of the average iPod has been paid for. However, they do not see it that way. They see that large 51%, and they want a cut, regardless of the fact that this has already been paid for. When looking at the chart above, it is clear why we need to change the law, but why do we need a levy? As things stand, the music industry has kindly stated that they will not enforce private copying. So at the moment, they have clearly specified to consumers that private copying is fine. How on Earth do they think that they can now ask for a levy? They claim:

“The Government faces a marginal trade off. Should this policy be passed, it has changed the law and, whilst this might not appear to change behaviour, it does widen the gap between value and utility yet further. Put another way, it increases the gap between a consumer’s willingness to pay for music content and hardware by making hardware relatively more valuable to the content. So, for example, if a consumer had a utility value of £100 per annum on music, of which 2/3 was taken up by the cost of an iPod and the residual on CDs and iTunes, that balance can be expected to shift towards hardware as a result of increased transferability of the content. Interventions should narrow the gap, not widen it.”

This reasoning is so convoluted that I do not know where to begin. They seem to be saying that institutiong a private copying exception will further erode their rights, as it will make the digital player more valuable that the content that fills it. Consumers do what seems fair with their CDs and rip the content, but the music industry sees this as behaviour that must be changed. While a private copying exception will not change behaviour, they argue that it makes music less valuable.

I am off now to wilfully engage in copyright infringement while I still can (in other words, I’m going to listen to music on my iPod).

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