Hargreaves supportive of Government copyright reforms but questions limitations to private copying exception

Professor Ian Hargreaves told Out-Law.com that whilst he was broadly supportive of the way the Government intends to act on the recommendations he made in his 2011 report to reform the UK's copyright regime, he said that its plans in relation to a new private copying exception could have been more ambitious.

Hargreaves said, though, that he agreed with the Government's view that a new levy system would not have to be introduced to account for a new private copying right for consumers.

"I think that it is very difficult to argue that a levy is owing to compensate for the making lawful a practice that is already ubiquitous," Hargreaves said. "I think the Government is right not to go for a levy."

"They have gone for the most cautious area of reform in this area. [The private copying exception] is confined to the individual; there is no concept of family. They could have been more adventurous though I understand why they weren’t – they’re trying to balance it," he added.

"The shortcoming of the new arrangement will be that it will still feel intuitively incorrect to a lot of people – I can’t transfer something from my wife’s iPod that I gave her for her birthday. We transfer the MP3 file into the car player – who owns the car? You can tie yourself in knots. I don’t want to exaggerate that but if the goal is to have something which corresponds to the way that the technology is already encouraging people to behave it is desirable that the law is as close to what consumers find sensible and rational as possible," Hargreaves said.

"The case for a levy arguably does increase the more latitude you give [the exception]. If we were in a situation where we could adjust the fine detail of the way that some of these rules and practices work I think we’d be in a better situation, but we’re not. [Copyright law] is not a flexible and adaptable system," he said.

Currently, some European countries allow the copying of material that a person legitimately owns, as long as that is for private use. Under the EU's Copyright Directive this is permitted as long as there is 'fair compensation' to the copyright holders. The EU's top court previously ruled that what constitutes 'fair compensation' must be determined by the "harm suffered by the author". Countries which allow private copying ensure this fair compensation by charging a levy on the media such as discs and media players that material is typically copied on to.

Antonió Vitorino, a mediator appointed by the European Commission to facilitate industry discussion aimed at creating a consistent approach to copyright levies across the EU, has now recommended, (28-page / 310KB PDF) though, that clarifications be made to the EU's private copying regime so that copies consumers make for their private purposes and which are made "in the context of a service that has been licensed by rightholders" should not be deemed to "cause any harm that would require additional remuneration in the form of private copying levies".

Hargreaves was commenting at the launch of CREATe (Creativity, Regulation, Enterprise and Technology), a new research centre for copyright and new business models based at Glasgow University. He told Out-Law.com that he believes the Government's proposals around reforming the copyright regime in the UK "carefully and thoughtfully" follow the "outline direction" that he had recommended.

"They have sought changes that will improve clarity for consumers and make their lives easier whilst taking into account the perfectly proper interests of rights holders," Hargreaves said. "They have shifted the balance in the right direction and generated a momentum for change which is needed."

The Government announced plans to establish new exceptions to copyright in December but said that in some cases it would be legitimate for rights holders to use "technological protection measures" to prevent some of the activity, such as private copying, that it has proposed to enable.

Hargreaves said that rights holders should be able to "protect their rights within the law" but warned that the utilisation of digital rights management and techniques may not be able sufficient to prevent piracy.

He also said that he believes the Government is right enable 'orphan works' to be used for commercial purposes under a revised UK orphan works framework, despite the EU proposing to limit the use of orphan works for non-commercial purposes only. Orphan works are copyrighted material, such as books, films and music, which have no identified owner. Orphan works cannot be digitised or used without permission under current copyright laws.

"I think there is commercial value to be had and there is potential for new products and new services," Hargreaves said. "I don’t have any doubt that the [Government’s plans] are right."

"There is undoubtedly a greater interest at European level in how we get the benefits from what needs to be, increasingly, a digital single market in the area of businesses that are based on rights trading," he added. "It is another very complicated field but the European Commission recognises the value of all of this and I think there is going to be a resetting of the balance in European law as well. Will the UK position be identical to the European position? It doesn’t have to be identical."

"There is no doubt that some people who don’t want the law to change in Britain will try to stop it changing in Britain by stopping it changing in Europe. Lobbyists are paid to be active in Brussels as well as they are in London so we’ll see how that goes. I think the case for very substantial reform of orphan works is overwhelmingly strong and I think it is very strong in Germany and very strong in France but ... there is another point of view, and we’ll see in the fullness of time how all that works through," Hargreaves said.