UK’s Legalization Of CD Ripping Is Unlawful, Court Rules

[MrKJLS]

Several music industry organizations in the UK have won a judicial review which renders the Government's decision to allow copying for personal use unlawful. According to the High Court, there's insufficient evidence to prove that the legislation doesn't hurt musicians and the industry at large.Late last year the UK Government legalized copying for private use, a practice which many citizens already believed to be legal.

 

However, until last October, anyone who transferred music from a purchased CD to an MP3 player was committing an offense.

The change was “in the best interest” of consumers, the Government reasoned, but several music industry organizations disagreed.

In November the Musicians’ Union (MU), the British Academy of Songwriters, Composers and Authors (BASCA) and UK Music applied for a judicial review of the new legislation.

 

While the groups are not against private copying exceptions, they disagreed with the Government’s conclusion that the change would cause no financial harm to the music industry.

Instead of keeping copies free, they suggested that a tax should be applied to blank media including blank CDs, hard drives, memory sticks and other blank media. This money would then be shared among rightsholders, a mechanism already operating in other European countries.

Today the High Court largely agreed with the music industry groups. The Government’s conclusion that copyright holders will not suffer any significant harm was based on inadequate evidence, Mr Justice Green ruled.

“In conclusion, the decision to introduce section 28B [private copying] in the absence of a compensation mechanism is unlawful,” the Judge writes.

 

The Judge didn’t agree with all claims from the music groups. For example, he rejected the allegation that the Government had unlawfully predetermined the outcome of the private copying consultation.

Nonetheless, the application for a judicial review succeeded meaning that the private copying exceptions are now deemed unlawful. As a result, the Government will likely have to amend the legislation, which took roughly half a decade to implement.

The UK music groups are happy with the outcome and are eager to discuss possible changes with lawmakers.

 

“The High Court agreed with us that Government acted unlawfully. It is vitally important that fairness for songwriters, composers and performers is written into the law,” UK Music CEO Jo Dipple commented on the ruling.

“Changes to copyright law that affect such a vital part of the creative economy, which supports one in twelve jobs, must only be introduced if there is a robust evidential basis for doing so,” Dipple added.

The High Court scheduled a new hearing next month to decide what action should be taken in response to the judgment, including whether the private copying exceptions should be scrapped from law.

Source: https://torrentfreak.com/uks-legalization-of-cd-ripping-is-unlawful-court-rules-150619/

[GeekyPete]

Why oh why do they expect me to pay for music over and over and over again because I want to listen to it using different devices?

 

That ruling harms the music industry more. I for one won't be buying any more music. If I can't stream it legally (youtube, listening to the radio etc) I just won't buy it.

 

Thankfully I'm at an age where I really don't want to hear 98% of the stuff in the charts.

[MrKJLS]

Capitalism at its best.

[sparkeh]

The idea of applying some kind of blanket copyright tax to blank media is crazy. So every time I want to buy media for non music data I still have to pay the music industry?

 

Ridiculous.

[Dos_Box]

The idea of applying some kind of blanket copyright tax to blank media is crazy. So every time I want to buy media for non music data I still have to pay the music industry?

 

Ridiculous.

 

Anybody would think the music industry wants free money!

[rich_tech]

It is starting to get a bit ridiculous now these groups lobbying all the time for rulings like this, it won't be long before humming a tune working will have the music police after you for royalties.

 

It really makes you wonder when you read this stuff.

[teejay]

How can a law be unlawful, that just doesn't make sense.

[Arthur]

there's insufficient evidence to prove that the legislation doesn't hurt musicians and the industry at large. Late last year the UK Government legalized copying for private use, a practice which many citizens already believed to be legal.

If most people already believed that ripping CDs was legal before it actually was legal, how can the introduction of a law that not many people knew about which made CD ripping legal have much of an effect on the levels on piracy?

[localzuk]

If most people already believed that ripping CDs was legal before it actually was legal, how can the introduction of a law that not many people knew about which made CD ripping legal have much of an effect on the levels on piracy?

 

It won't. This is just the music industry trying to get more income by pushing for a media tax.

 

I don't understand how a court can rule a law unlawful based on something they said. If the government had said "we're doing this because we want to make life easier for consumers" and left it at that, would the court have ruled the law unlawful?

[Gatt]

Bloody EU courts..

This stupidity pushes me more to voting to leave the EU in the upcoming referendum...

Edited June 19, 2015 by Gatt

[localzuk]

Bloody EU courts..

This stupidity pushes me more to voting to leave the EU in the upcoming referendum...

 

Hoping that's sarcasm...

[Gatt]

Hoping that's sarcasm...

Not really..

 

At present I'm "on the fence" as there is not enough information to persuade me in either direction..

I can see good arguments for both sides and this is certainly a good argument for leaving.. (ie: - The EU overruling our laws)

 

Most of me doesn't think we should leave outright, but I do think we should try and regain some control of certain powers we have "lost".. Law making decisions for example

Edited June 19, 2015 by Gatt

[localzuk]

This wasn't an EU court. It was a judicial review in an English court...

[Gatt]

This wasn't an EU court. It was a judicial review in an English court...

 

Ah, my bad!

I could've sworn I read that it was an EU court....

[Arthur]

This is just the music industry trying to get more income by pushing for a media tax.

You're right. The music industry is being far too greedy. As the article below mentions, losses due to piracy should already be factored into the pricing for audio CDs so they do not need additional compensation.

 

Music industry wins against UK government over private copying of music

 

The UK government brought in the new copyright exception under a European Union directive that gives national governments that power, but which requires compensation to be paid to artists unless the harm caused to them by the change in copyright law is minimal. The UK government argued that by limiting the new exception to private copies, any harm caused to copyright holders was indeed negligible, and therefore did not need to be funded—for example through a levy charged on consumers of blank media (CDs, DVDs, Blu-Ray discs etc.) and equipment (MP3 players, printers, PCs, etc.)—of the kind found in other EU countries with copyright exceptions.

 

The UK government offered two main arguments for its position. One was that most people had not been buying duplicates because they felt they had a right to make backup or format-shifted copies, even if the law said otherwise, and acted accordingly. Therefore, legalising what people already did would not cause any significant lost sales, and therefore no compensation was necessary.

 

The other argument offered by the UK government was that the copyright industries knew full well that everyone was making personal copies, and had already incorporated that fact in the pricing. So legalising those personal copies with a copyright exception would again not lead to any loss for the copyright holders, who were already obtaining compensation through slightly increased prices.

 

In the case before the High Court, the music groups claimed that the assumptions adopted by the UK government were both "legally and factually incorrect and flawed," and also challenged "the inferences and conclusions drawn from the evidence actually collected."

 

In general, the judge found for the UK government, except on one crucial point: he agreed that the UK government's decision to bring in the new copyright exception was "flawed" because "the evidence relied upon to justify the conclusion about harm was inadequate/manifestly inadequate."

 

This leaves three possibilities for the UK government. It could carry out further research to prove more rigorously that copyright holders will not suffer from the introduction of this personal copy exception, in which case the law could stand; it could repeal the relevant section; or it could introduce a compensation scheme. As the judge points out, "the next stage is for the parties to make submissions as to next steps," so that the status of the new exemption can be clarified.

 

What's noteworthy here is the degree of resistance to even the most trivial of copyright exceptions—one that simply legalises the status quo, rather than introducing any substantive change. The refusal to accept gracefully legislative changes is not new for the copyright industry. Perhaps the most egregious example of its dog-in-the-manger attitude was during negotiations for a global treaty to give the blind and visually impaired greater access to electronic texts. There, the proposal to allow them to circumvent DRM legally so that assistive technologies like Braille readers could be deployed was fiercely fought.

 

When preserving the sanctity of anti-circumvention measures is regarded as more important than enriching the lives of hundreds of millions of blind and visually impaired people around the world, it's perhaps no wonder that even the UK's mildest of copyrights exceptions ends up in the High Court.

[Dos_Box]

What next? The book publishing industry pushing for a tax on reams of blank paper, just because......?

[Andrew_C]

Oh ffs;cave in to big business and make the ordinary man pay twice for ephemera... Genius way to make money though.

[Gatt]

What next? The book publishing industry pushing for a tax on reams of blank paper, just because......?

 

 

Sounds like that (sort of) already happened...

What's noteworthy here is the degree of resistance to even the most trivial of copyright exceptions—one that simply legalises the status quo, rather than introducing any substantive change. The refusal to accept gracefully legislative changes is not new for the copyright industry. Perhaps the most egregious example of its dog-in-the-manger attitude was during negotiations for a global treaty to give the blind and visually impaired greater access to electronic texts. There, the proposal to allow them to circumvent DRM legally so that assistive technologies like Braille readers could be deployed was fiercely fought.

[flyinghaggis]

Presumably this will also make ripping DVD's, which someone commented had been legalised in another thread, illegal again?

 

It does seem pretty unreasonable charging people twice for the same content they've already paid for even if it will make money because a percentage of owners will go out and buy it again. If you genuinely have no ownership or rights for media you buy then it pretty much forces everyone towards the subscription models for digital content.

 

I've given up on buying physical media now anyway having witnessed the moves from cassette to CD and VHS to DVD to Blu-Ray. No doubt when 4k becomes a standard we'll have another batch of special media for it that requires new player's/etc. Even in gaming I have lots of old games and when the consoles that run them eventually break then I'll have no way to access that media.

 

These days I generally buy most games on Steam as it's the best chance to ensure that you can still play a game you buy years down the line. I suspect even Steam will likely introduce some kind of subscription service in the near future. Even 'buying' specific games/music/movies on services like steam and iTunes is a but sketchy as ultimately what happens if the company running the service goes out of business? Does that leave you without access to the paid for digital content you own and without right to transfer it to an alternative service?

 

Providing you have a fast enough internet connection it's time to give up on purchasing physical (or even digital media ultimately) and get on the subscription bandwagon as it's clear the media industry will never give you any rights over media you 'own' anyway

Edited June 21, 2015 by flyinghaggis

[MrKJLS]

Earlier this month several music industry organizations in the UK won a judicial review which renders the Government's decision to allow copying for personal use unlawful. Following this unexpected decision are UK citizens now breaking the law if they copy their own CDs? How will the fate of the legislation be determined?

 

The recent BASCA case has raised some interesting questions about the legal status of the private copying exception to UK copyright lawintroduced in 2014.

Broadly speaking, the new law is found in s28B of the Copyright, Design and Patents Act 1988, and introduced a limited defense to a copyright infringement claim where an individual makes a copy of a work he legitimately already owns, for example for the purpose of format shifting. Ripping a music file from a CD to .MP3 format for playing on a smartphone or tablet being one typical example.

 

 

This exception does not allow copying of copyright protected material for family and friends, neither does it legitimize downloading files from the Internet, as in most cases the downloader will not already own a legitimate licensed copy.

So really, you might well think, “that is a pretty limited situation, why all the fuss?”

Why indeed.

 

 

The issue turns around the meaning of “fair compensation”. BASCA and the other claimants claim they are due some fair compensation for this as required by EU Directive 2001/29 which UK law has to comply with. The UK Government contended, in this particular instance, that no compensation is fair compensation.

 

 

The agenda for the claimant is that if they succeed, a blank media levy on storage would likely be introduced to provide their fair compensation, which already exists in many other European Countries. This will of course increase costs for consumers, and profits for copyright owners.

 

 

It is therefore a quite high stakes game, and means that immediate settlement in this case (the government lost a judicial review earlier this month) is probably quite unlikely. The key issues are whether the UK’s new private copying exception was itself legal under EU law and secondly, whether the process it was adopted under was procedurally legal.

The case can hardly be touted as a victory for the Claimants – BASCA et al. Of several grounds put forward by the claimants regarding the compliance with EU law, the judge rejected each in turn, not one being upheld. The only ground of the claimant’s case which was upheld, was that the Secretary of State for Business, Innovation and Skills, in introducing section 28B had not taken all relevant evidence and information into account before introducing this section.

So what happens now?

 

 

For the time being at least s28B remains with its limited format shifting defense. We are, for the moment, still free to format shift.

The Secretary of State could merely carry out the review in the proper manner identified by the court, gather sufficient evidence supporting s28B and that would satisfy the procedural requirement.

Either party could also appeal, the Claimant against the judge’s ruling against them on several points of law, or the defendant against the judge’s finding against the Secretary of State that insufficient evidence had been gathered or taken into account.

If this were to occur, it would be to the Court of Appeal, and possibly from there to the Supreme Court. For such appeals timescales of years rather than months are usually appropriate.

The other option which exists, which is not an appeal as such, is the court could refer the matter to the Court of Justice of the European Union (CJEU) for a ruling on a point of Law. As the UK law in dispute is derived from EU Law, it is the CJEU who has the ultimate say on what the EU law means in those circumstances.

 

 

Here the UK court would ask a specific set of questions as to what the correct interpretation of the law is, but the CJEU does not strictly speaking decide for the claimant or defendant, though in effect the ruling will usually strongly be favorable to one of the parties. This process will often take at least three or more years.

What might appeal courts or the CJEU rule ? Impossible to say with any certainty, but the CJEU has said in the recent Copydan case that in circumstances where there is minimal prejudice to the copyright owner, no compensation can indeed be fair compensation.

 

 

In this instance, as the user has already paid a copyright license fee when buying the original CD from which files are ripped, do the copyright owners suffer anything more than minor prejudice? I would suggest not, and it is apparent that this is the opinion of the judge Mr Justice Green, in BASCA. The claimants in BASCA of course contend differently, but well they would wouldn’t they?

A final parting point. If it were the case that through a CJEU ruling against format shifting a blank media levy was introduced (and this can be compelled by the EU, although this would be a long several year process of CJEU Ruling, UK failure to comply, negotiations, warnings etc before any action was taken by the Commission) the UK Government could quite legitimately contend that since many other EU countries which allow private copying with such levies also allow private copies for family members, the UK should now do the same.

 

 

This would widen the ambit of the current s28B a significant amount, and would to some extent offset increased costs to consumers of a blank media levy.

—

 

About the author: Camden is an IP lawyer practicing in the UK

 

Source: https://torrentfreak.com/private-copying-and-uk-copyright-law-not-dead-yet-150705

[Andrew_C]

A final parting point. If it were the case that through a CJEU ruling against format shifting a blank media levy was introduced (and this can be compelled by the EU, although this would be a long several year process of CJEU Ruling, UK failure to comply, negotiations, warnings etc before any action was taken by the Commission) the UK Government could quite legitimately contend that since many other EU countries which allow private copying with such levies also allow private copies for family members, the UK should now do the same.

Now that's an interesting twist on the case.

[crc-ict]

Isn't it time that the music and movie industries moved away from a 'physical product' sales model to more of a licence based model? That way, your original CDs etc could be treated as backups once you have 'installed' your licenced music onto your PC, iPod, MP3 player etc. Surely fairer than expecting multiple payments for the same product just because you want it in different formats?

 

Also then, where do you stand with Amazon's AutoRip - buy the CD and also get the same album on MP3 download? Although presumably that is some sort of separate deal with the record labels.

[X-13]

Isn't it time that the music and movie industries moved away from a 'physical product' sales model to more of a licence based model?

 

No.

 

It is not, nor will it ever be, the time to do away with owning things you buy and moving to an anti-consumer licence based model.

[Crumpet]

Copying casette tapes was illegal too back in t' olden days too and nobody gave two hoots about it.

 

It's one of those laws that is practically unenforceable because almost everybody does it. So long as the person has purchased the original CD i can't see anyone caring.

[CHR1S]

It does seem pretty unreasonable charging people twice for the same content they've already paid for even if it will make money because a percentage of owners will go out and buy it again. If you genuinely have no ownership or rights for media you buy then it pretty much forces everyone towards the subscription models for digital content.

 

Or piracy.

 

If your breaking the law copying something you have already paid for its only a small stepping stone to thinking "sod you, I might as well just get it for free anyway"