Proposals in UK to make CD copying legal as both UK Government and the EC look to make copyright law ‘fit’ for the digital age as Swedish MPs go even further

February 2008

All areas

Copying compact discs on to computers or iPods could become legal for the first time in the UK under government proposals in a move that parts of the music industry has warned could “open the floodgates” to further filesharing. Lord Triesman, minister for intellectual property, will begin a consultation process which will end on March 7 2008. The consultation will look at the viability of legalising such recordings as long as they are for personal use. The Association of Independent Music, the industry group, has warned that the exception could open the floodgates to “uncontrolled and unstoppable” private copying and sharing from person to person. Alison Wenham, chairman and chief executive of the AIM, said that the move could set a dangerous precedent. CDs would largely be redundant in five years, she predicted, but the new legislation would still remain and could be misused. But Geoff Taylor, chief executive of the British Phonographic Industry, another industry group, said he was broadly in favour of the changes because it would clarify the law for consumers. However, Mr Taylor said the government should ensure that the move would not “do harm to” the record industry. The consultation will also look at wider intellectual property issues surrounding new media. These range from the legality of companies offering distance learning or online education to upload film or sound recordings. At present this is not easily done. The changes come at a time of upheaval in the industry where internet-based media are taking a growing share of the market from traditional providers of news, music and other entertainment. The change of the rules regarding copying CDs was one of the recommendations of the Gowers report into intellectual property laws by Andrew Gowers, former editor of the Financial Times. But it was counterbalanced by Mr Gowers calling for harsher sentencing for online music and film pirates. One suggestion in his Treasury-commissioned report was that online piracy could be punished by prison sentences of up to 10 years instead of the current two-year maximum. This would bring the punishment into line with those convicted of trading in counterfeit CDs or DVDs.

For other recommended changes including the sue of new media in educational establishments, museums and libraries, the future of DRM as well as possible changes to the definition of ‘faire dealing’ see

Marc Holmes reports on Swedish moves to decriminalise file sharing

Liberal members of the Swedish parliament have responded fiercely to a recent report by the government’s ‘copyright analyst’, Cecilia Renfors. The report recommends that ISPs should be forced to regulate all of their clients’ communications, in an attempt clamp down on illegal filesharing of copyright material – a move that would mirror similar action in other European jurisdictions such as France. A paper authored by six members of the Moderate Party in opposition to the report attempts to ally the sharing of information over the internet with fundamental rights of privacy included in the European Convention on Human Rights, as well as characterising the issue as one of ‘freedom of information’.

In particular, the authors see it as crucial that members of the Swedish parliament, and Swedish politicians in general, do not affiliate themselves with so called ‘special interest’ groups such as the copyright industries, that endlessly lobby governments for changes in the law to protect their investments. This is particularly the case, as they see it, because those industry bodies will never in fact be satisfied and will always crave more and further reaching measures, and such further attempts to criminalise the sharing of information will only result in ever more draconian measures to keep up with a technology that is becoming more and more sophisticated.

The authors advance a further argument, citing the copyright industry’s track record of scepticism to all major technological advances in the realm of the consumption of entertainment products. The example of Beta-Max and the early MP3 players are given, in an attempt to illustrate the copyright industry’s paranoid desire to control the ebb and flow of their product at any cost. They claim that their aim is to ensure that Sweden does not become a country hostile to technological advancement and does not surrender to rights holders who want return on investment above all else, even if that means interfering with what the authors see as fundamental rights.

Almost simultaneously with these two stories, The European Commission published its Communication on Creative Content Online in the Single Market aiming to … encourage the content industry, telecoms companies and Internet service providers to work closely together to make available more content online. There is a  29th February deadline for responses to a number of key questions posed in the Communication which singles out four challenges which “merit action at an EU level”: (1) availability of creative content; (2) multi-territory licensing for creative content; (3) interoperability and transparency of DRM systems and (4) legal offers and piracy saying this:

Availability of creative content – Owners of creative content are sometimes reluctant to make it available for online distribution. Amongst the reasons for this are concerns over illegal downloads and online “piracy”. In addition, there are across the EU major difficulties in negotiating and settling terms of trade between the right owners and the online distributors of creative content. The Commission is therefore today strongly encouraging stakeholders to find innovative and collaborative solutions to exploit the market for content online. A first step into this direction was taken in 2006 with the “European Film Online Charter” (see IP/06/672), but the Commission notes a lack of ambition and implementation in the follow-up to this initiative.

Multi-territory licensing for creative content – Online environments such as the Internet and mobile services inherently allow content services to be made available across the single European market. However, the lack of multi-territory copyright licences – allowing the use of content in several or all EU Member States – makes it difficult for online services to be deployed across Europe and to benefit from economies of scale. While it is first for rights holders to appreciate the potential commercial benefits of multi-territory licensing, there is an underlying need, also from a consumer perspective, to improve on existing licensing mechanisms.

Interoperability and transparency of Digital Rights Management systems (DRMs) – Technologies that support the management of rights and the fair remuneration of creators in an online environment can be a key enabler for development of innovative business models. Lengthy discussions amongst stakeholders have yet to lead to the deployment of interoperable and user-friendly DRM solutions. The Commission therefore seeks to establish a framework for DRM transparency concerning, amongst others, the interoperability of different DRMs, and ensuring that consumers are properly informed of any usage restrictions placed on downloaded content, as well as of the interoperability of related online services;

Legal offers and piracy – Piracy, including the unauthorised up- and downloading of copyrighted content, remains a central concern. The Commission intends to instigate co-operation procedures (“codes of conduct”) between access/service providers, right holders and consumers to ensure not only the widespread offer of attractive content online, but also adequate protection of copyrighted works, and close cooperation on the fight against piracy and unauthorised file-sharing

And finally the European Parliament’s Committee on Culture and Education has rejected proposals that would have set up mandatory Internet Service Provider copyright filters (against illegal file sharing and downloading) and would have extend EU sound recording copyrights from the current 50 year term to match the USA’s approximate 95 year term.

With its usual excellent analysis see 

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