The issue of a private copying exception is of particular interest. That the act of format-shifting from CD to MP3 player remains technically illegal was rightly picked up by Gowers. His suggestion of legislation to allow a tightly-drafted exception, enabling users to format-shift music they have legitimately purchased onto a device of their choosing, is an interesting potential solution. Certainly a solution needs to be found and, ideally, we should all be encouraging music lovers to purchase music legitimately and upload to other devices in a way that the creators get fair remuneration.
Certainly, the general public are likely to greet any legal changes in this area with an almighty shrug. Consumers have been uploading their CD collections for over half a decade now. As Steve Jobs admitted in his infamous Thoughts On Music essay, by the end of 2006 the average iPod contained only 22 tracks purchased from the iTunes Store.
However, there is one significant bone of contention if the rules regarding format-shifting are loosened. And that is compensation.
This was an issue sidestepped in the original review. For while the European Union’s Copyright Directive demands that any private copying exception is accompanied with fair compensation for rightsholders, Gowers remains unconvinced - describing levies on manufacturers of recordable media (the norm elsewhere in Europe) as ‘blunt instruments’ that cannot accurately compensate for every copy. Far better, he adds, would be to incorporate ‘fair compensation’ into the initial sale price of a CD. However, this in itself seems no less of a blunt instrument, as well as running counter to all current market trends.
The question for Government is how to ensure that there is fair compensation, and how this will be collected and distributed.
The revenue gathered by our European cousins is already considerable. In France, for instance, there is a €0.35 levy on data CDRs and levies of up to €20 on flash memories or hard drives inserted into MP3 players. In 2005, French collecting society SACEM distributed more than €52m to its members from private copying levies collected under French law from the sale of goods in France.
If the idea of levies for the UK proves too unpalatable for the legislators, British Music Rights proposes a number of alternatives:
• either a private industry fund where media manufacturers can deposit a single annual sum
• a public sector fund akin to the already well established Public Lending Right where authors are recompensed for their work being borrowed from libraries
• or perhaps a hybrid of the two
And of course, in the shape of MCPS-PRS, the apparatus is already in place to distribute this revenue.
Florian Koempel is Legal Counsel at British Music Rights