Copyright exception for private copying

The Intellectual Property Office (which sounds like it’s an estate agent for PhDs) is giving people the opportunity to comment on draft legislation on changes to copyright law. There are currently four documents describing the proposed changes, including an exception for private copying — such as ripping your own CDs to your own iPod.

Here’s the guts of the proposed private copying exception (PDF):

28B Private copying

(1) Copyright is not infringed where an individual uses a copy of a copyright work lawfully acquired by him to make a further copy of that work provided that:

(a) the further copy is made for that individual’s private use for ends that are neither directly nor indirectly commercial;

(b) the copy from which the further copy is made is held by the individual on a permanent basis (for example it is not a copy that is rented to the individual for a specified period or borrowed from a library); and

(c) the making of the further copy does not involve the circumvention of effective technological measures applied to the copy from which it is made.

To my non-legal mind this has a couple of flaws.

First, in 28B 1(b), the word “permanent” is troubling. If I legitimately purchase an ebook for Kindle, Amazon has the ability to remotely delete the ebook or modify it at any time, and I cannot stop this happening. Given Amazon’s abilities, are Kindle ebooks considered to be “held by the individual on a permanent basis” or not? It’s reasonable, given Amazon’s powers, to say they aren’t.

I’d say that transferring a legitimately purchased ebook from a Kindle to another reading device is an act the private copying exception is intended explicitly to permit, and I’m not convinced the clause as written is sufficient.

Then in 28B 1(c) we have what amounts to a DRM exception to the exception. This line neuters the private copying exception entirely so it becomes, effectively, “you may make a private copy if the copyright owner allows it”. This is not the exception as advertised at all.

It should be expressly permitted to circumvent effective technological measures for the sole purpose of private copying.

I’ve sent these two comments to the IPO.


1 Comment

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One response to “Copyright exception for private copying

  1. Your rights are severely restricted if you license (NB not purchase) e-content from Amazon:

    Use of Kindle Content: Kindle Content is licensed, not sold, to you by the Content Provider. The Content Provider may include additional terms for use within its Kindle Content. Those terms will also apply, but this Agreement will govern in the event of a conflict. Some Kindle Content, such as Periodicals, may not be available to you through Reading Applications.

    Limitations. Unless specifically indicated otherwise, you may not sell, rent, lease, distribute, broadcast, sublicense, or otherwise assign any rights to the Kindle Content or any portion of it to any third party, and you may not remove or modify any proprietary notices or labels on the Kindle Content. In addition, you may not bypass, modify, defeat, or circumvent security features that protect the Kindle Content.

    Termination. Your rights under this Agreement will automatically terminate if you fail to comply with any term of this Agreement. In case of such termination, you must cease all use of the Kindle Store and the Kindle Content, and Amazon may immediately revoke your access to the Kindle Store and the Kindle Content without refund of any fees. Amazon’s failure to insist upon or enforce your strict compliance with this Agreement will not constitute a waiver of any of its rights.

    Bring back paper books…

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