Why the music industry is fighting the wrong copyright battle

We all know that it’s possible to share books, CDs and mixtapes, pull them apart, or transfer them to different environments. Their digital equivalents, however, are not so free.

On Friday, the high court in London ruled that when you rip your lawfully owned CDs, transfer a DVD movie to a USB-only device, or backup your playlists, consumers are potentially “harming” rights holders.

As a result, an eight-month-old legal provision allowing private copying for personal use has become potentially unlawful.

It took until 2014 for the UK to have a private copying exception, legalising what everyone assumed to be possible: making copies of content you have legally bought for purposes such as backups, cloud storage and format-shifting.

But even then, the UK exception is ridiculously narrow. You must have acquired the content lawfully and on a permanent basis (even though the world is moving to rental and streaming). Your use must be private, personal and exclusive. You cannot share the content with anyone else and you must not use it for any commercial purpose.

You are allowed to format-shift (for example, from a CD to an MP3). But if digital rights management technology prevents you doing so, then you’re out of luck. Not only that, but you will be up against the law if you use or build anything that can be used to get around those restrictions.

The 2014 law creates a sliver of an opportunity to get around this - but it requires you, first, to seek agreement with the rights holder and, if that fails, to complain to the secretary of state for business. Good luck with that.

If this seems draconian, it just got worse: consumers may have to pay extra for this dismal private copying privilege too.

To fairly compensate rights holders for the dubious “harm”, other European countries have extracted a private copying levy for things like blank CDs, MP3s, printers and smartphones. The amounts vary from a few cents to several euros.

This is not compensation to make up for unauthorised downloads, or for the theoretical lost sale of your sister reading a book or MP3 you lent her, instead of buying her own. It is for whatever is lost when you make a personal backup of your lawfully purchased content.

When it introduced its 2014 private copying exception, the UK government considered the harm to rights holders so minimal that it would not impose a levy (though it did say that the price could be incorporated into the sale of creative works).

In a challenge made last November, representatives of the ever-litigious UK music industry claimed this was unlawful and that the law should be struck out.

Hammer drops on levies

The high court has found in favour of the music lobby as it ruled that the government did not have sufficient evidence to show that the harm to rights holders from the new private copying exception was minimal or zero.

Although the court accepted that there is an element of art and judgment, as well as science, in the exercise of quantifying potential harm, it found that the government had not gone far enough to prove that the way that the industry already prices in the cost of private copying left harm at a minimal or non-existent level.

To a large extent, the court’s hands were tied by law that requires a levy to compensate for plausible harm, as well as a recent ruling of a European court, finding that the exception should be read extremely narrowly.

That means British consumers are required to respect digital rights management restrictions, and could have to pay extra for fewer rights than we have had as audiences before.

It is clearly unsatisfactory that our freedoms over the use, sharing and transfer of digital media should be narrower than with physical media. By chasing levies on legal content, the real issues about copyright in the digital age are being overlooked.