The "lawful user" is a really important person in the world of private copying. Put another way, if I am not a "lawful user", can I make private copies of copyright works under a private copying exception? This is really significant for content businesses built on online distribution.
It's a pertinent question, especially as The Copyright and Rights in Performances (Personal Copies for Private Use) Regulations 2014 are due to come into force very soon - June? - as one of the key changes to UK copyright law following the Hargreaves Review. A long running bone of contention amongst user groups is that copyright exceptions did not allow someone who lawfully bought a work, say on a CD, to copy it to another storage medium, to shift a purchased e-book from one personal device to another or indeed to make a back-up copy to their personal cloud service,
European copyright law, specifically Articles 5 (2) (b) and 5 (5) makes it clear that where a member state introduces an exception to allow private copying (with or, as in the UK's case, without, levies), it can only apply to lawful copies. So if an individual has an infringing copy, the exception can't apply. This was confirmed in the recent ECJ decision in ACI Adam BV and others v Stichting de Thuiskopie and others.
Fine so far. So what is a 'lawful copy'? Well, my understanding is that it must be a copy of a copy where the first copy has been lawfully acquired i.e. with the consent/licence of the copyright owner. I don't think it also covers private copies of copies made under another copyright exception.
So here's my question - is this clear in the forthcoming Regulation on personal copies? I am not sure. The reason for my uncertainty is the wording of the proposed new section 28B (1) (a) which will be inserted into the UK Copyright Act by the Regulations. This allows the making of a private copy provided it is a copy of the"individual's own copy of the work, or a personal copy of the work made by the individual." (emphasis added).
Whilst the rest of the new section 28B makes clear that an "individual's own copy of the work" is one which has been lawfully acquired, it isn't clear that this applies to "personal copies made by the individual."
If you read the Explanatory Memorandum at the end of the draft Regulation, it seems clear that this is not the intention. But, as drafted, there's a risk that it enables an individual to go online and make a personal copy under the exception, irrespective of the terms of service. It should be remembered that the Regulation expressly overrides any contract term which purports to provent of restrict the making of a copy allowed under the exception.
Whilst June is getting close, let's hope this gets clarified so that it's clear that all copies made under this exception must be lawful copies. As my friend Hugh Jones at the Publishers Association often says, "beware the law of unintended consequences."
Have a good week,