This blawg focuses on US law as it pertains to technology and entertainment, but a recent decision of the High Court of the United Kingdom just caught my interest. The High Court of the United Kingdom held that certain “private copying” exceptions to the UK’s copyright law (which had allowed for private home copying of copyrighted materials such as musical recordings) is unlawful. (The High Court has no direct counterpart in the US Federal court system. It deals as the court of first resort in all high value and high importance cases in the UK, and also has a supervisory jurisdiction over all subordinate courts and tribunals, with a few statutory exceptions.) What this means is that, under British law (at least according to that court), a consumer may no longer make copies of CDs or even backup copyrighted programs on their computers without engaging in unlawful copyright infringement.
Accordingly, popular services such as iTunes (which is designed to allow for CD ripping) are now illegal in the UK. According to the UK Intellectual Property Office, it is now unlawful to make private copies of copyrighted works owned by an individual (such as a lawfully purchased CD or lawfully purchased copy of software) without first obtaining permission from the copyright owner. That office expressly stated that unauthorized format shifting from one medium to another (e.g., copying a purchased CD onto a computer or MP3 player) is now unlawful.
US copyright law, however, expressly allows consumers to make private copies of lawfully purchased or obtained audio recordings. The Audio Home Recording Act of 1992 (“AHRA”) (embodied in Section 1008 of the Copyright Act) provides:. “No action may be brought under this title alleging infringement of copyright based on the manufacture, importation, or distribution of a digital audio recording device, a digital audio recording medium, an analog recording device, or an analog recording medium, or based on the noncommercial use by a consumer of such a device or medium for making digital musical recordings or analog musical recordings.” The AHRA was a result of a compromise with interested parties (such as the then –fledgling digital recording device industry and the music industry) to address the desire for additional copyright royalties from digital uses of music while recognizing consumers’ personal copying behaviors. While there is some scholarly debate over whether all private digital copying is allowed under the Act, the prevailing view is that an individual consumer is allowed to make copies, either analog or digital, of musical recordings. (Note: The Copyright Act amendment did NOT address video recordings, only audio.)
What is going to happen next in the UK is anyone’s guess. To the extent that Apple continues to distribute iTunes in the UK without disabling the CD ripping functionality, it appears to be in violation of UK law and may be accused of engaging in copyright infringement. Even cloud services (which allow for making and uploading digital copies of copyrighted materials) may face legal action.
According to reports, the British government is not pleased with the High Court’s decision in this matter, rightfully concluding that it is likely to cause chaos and concern (and is likely to be highly unenforceable against individuals). As a result, I would not be surprised to see the British Parliament revise UK copyright law to make explicit that such home copying is lawful, similar to the American model.