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Hargreaves rejects fair use, but re-ignites format shifting debate

By | Published on Thursday 19 May 2011

Ian Hargreaves

So, as previously reported, the Hargreaves Review of UK intellectual property laws was published yesterday, with few surprises inside, the key elements of his ten proposals having already been leaked. As expected as of last week, the review was not anywhere near as radical as had initially been expected by both rights-owners and those who advocate extensive reform of the copyright system.

Among the proposals are the creation of a digital rights exchange to simplify the licensing process, and a ‘copyright tsar’ to run it; the development of a better system for dealing with orphan works, where the identity of a rights owner isn’t know (probably to be managed by the aforementioned rights exchange); the introduction of a parody right and a private copy right; and the suggestion that the UK should take the lead in pushing for a pan-European patents system and court.

But, much to the disappointment of those who are pro copyright reform, and to the relief of traditional content owners, Hargreaves did not advocate the introduction of a US-style fair use system to replace the much more limited fair dealing provisions in British copyright law. Fair use provides a series of exemptions when copyright rules either do not apply, or certain parties cannot be held liable for inadvertently enabling others to infringe.

Google, which had a role in instigating this review in the first place, is known to dislike the relative lack of fair use principles in the British copyright system. However, Hargreaves said introducing US-style fair use rules would be difficult, and the perceived benefits did not outweigh the challenges and risks.

So, given the music industry was shitting itself at the start of this review, convinced the Prof would advocate streamlining the rights of copyright owners, good news all round really for music types.

The review does, of course, put the private copy right – or format shifting – back on the agenda. Few in the music industry actually oppose the introduction of a private copy right, which would give formal permission for consumers to rip CDs to PC or iPod – and the BPI said as much in its submission to an earlier copyright review led by Andrew Gowers back in 2006. The issue is whether music rights owners should receive any compensation for this.

Because in some other territories where the private copy right already exists the music industry receives compensation through a levy charged on devices onto which copies can be made, some in the UK feel the introduction of a private copy right here should be accompanied by some sort of new levy or licence fee – though neither Gowers nor Hargreaves concurred.

As previously commented, for the music business to push for such a levy seems like insanity to us, especially given that in the digital age that means adding a levy to the iPod, which in turn means taking on the Apple PR machine. The money such a system would raise is nominal and short lived – music bought from legitimate download stores usually allows some (albeit limited) format shifting within the licences they offer consumers already, so really the levy is linked to CD ripping.

To push for a levy means yet more bad press for the music business, whereas announcing that the music rights industry plans to take the lead here to fix a bit of bad copyright law, and that it will ask for nothing in return, could deliver a hugely positive reputation boost for the sector – proving record companies and music publishers are consumer-savvy responsible copyright owners, and not money grabbing delusional cunts. Just a thought.