Copyright and the connected consumer: Private copying

Today’s connected consumer consumes digital content on a multitude of devices: from smartphones to tablets, PCs, smartwatches or TVs, the list goes on. And while certain media are designed to be restricted by device (video games), standardisation of interfaces and file formats (such as Mp3, JPEG or PDF) in most cases allows content to be copied to other devices with ease.

So when a consumer purchases a song or an ebook on a smartphone, for example, they will not think twice about copying it across to their tablet, PC or other device that it is compatible with. What’s more, they are likely to believe that these actions were reasonable and would not have thought that they were doing anything wrong in the eyes of the law. But were they?

The EU: A fractured landscape

Unfortunately, the legal position on private copying is not harmonised between the different Member States of the EU. In some countries, private copying is allowed – and rightsholders are compensated by the imposition of a levy on sales of electronic equipment which is capable of being used for copying, from photocopiers and memory cards to MP3 players. Exactly which equipment should be subject to levies has been controversial in Denmark, France and Germany, leading to a Court of Justice (CJEU) decision in March 2015 setting out criteria Member States should consider in setting levies.

In a dispute between Nokia and the Danish collecting society Copydan Bandkopi, the CJEU ruled that it does not matter whether a medium is unifunctional or multifunctional. Copyright levies may be imposed, if at least one function allows for private copying, even if this function is ancillary to the primary uses of the product. However, that primary function does affect the assessment of what compensation might be fair. Member States may further distinguish between storage media which is detachable or permanently integrated into a device, and content which is subject to technical protection measures or otherwise. Ultimately, the threshold of how great the harm to rightsholders has to be before compensation becomes payable is up to the Member States’ discretion, provided it is applied in a manner consistent with the principle of equal treatment.

But the blanket nature of levies means buyers of potentially-copying equipment subsidising rightsholders without necessarily taking any benefit from the exemption. For instance, business users of copying equipment are not entitled to the exemption whether or not a levy has been paid. Further, compensation should not be payable for copies made of infringing copies: these cannot be ‘franked’ by the private copying exemption. Such evident unfairnesses in the levy system has led to widespread dissatisfaction. Finland withdrew its levy system in 2014.

Alternatives to a levy

In other countries no levy has been applied, and instead the legal scope of any exception for copyright is much more limited, leaving users frequently stepping over the line. In two linked pieces, we look at two countries which have adopted different approaches when it comes to legislating for private copying:

• Spain has opted for an express exception for private copying and a central mechanism for compensating rightsholders, although neither of those elements is without difficulty (read more here). 
• The UK recently attempted to introduce legislation providing for a similar exception for private copying, but without either a levy or a central compensation scheme. That legislation was successfully challenged in the courts and has since been quashed (read more here).

Reform needed

Clearly, reform is needed to bring about national regimes that are fair to all sides, and preferably aligned with each other. In the meantime, the EU remains a fractured landscape when it comes to private copying, and the UK has unfortunately reverted to the worst of all worlds – leaving rightsholders without compensation and consumers often unwittingly on the wrong side of the law.