Hargreaves proposed private copying exception must clearly exclude software, says FAST | FAST

Hargreaves proposed private copying exception must clearly exclude software, says FAST

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The Federation Against Software Theft (FAST) has warned that the Government’s proposed private copying exception for copyright is too broad in its scope, and must be refined in order to account for the nuances of software which are dealt with under the Software Directive (Directive 91/250/EEC since been repealed and replaced by Directive 2009/24/EC). A failure be clear in law could confuse licensees of software on the issue of private copies and software. 

The Government intends to introduce a private copying exception which will allow an individual to copy content they have purchased lawfully to another medium or device for their own personal use. The exception is essentially a response to the need to permit widespread ‘format shifting’ of content allowing people to copy a genuine CD from their music collection onto their mp3 player or phone.

Speaking in a debate in the House of Lords on 5th December 2013, Lord Clement-Jones, challenged the proposed private copying exception, as it is currently drafted, stating that software is different. Lord Clement-Jones said: “How does the private copying exception square with the fact that the software directive excludes private copying from the scope of permissible exceptions?” Clearly consideration needs to be given to changes to the draft in the public domain from the summer. 

Similarly, in a recent report, ”Supporting the creative economy”, the Culture, Media and Sport Committee was highly sceptical of the impact assessments made on exceptions. In it, it said: “We are not persuaded that the introduction of new copyright exceptions will bring the benefits claimed and believe that generally the existing law works well.”

Echoing these views, Julian Heathcote Hobbins, FAST’s General Counsel, said: “I fear the law of unintended consequences as, in my view, the draft on private copying is not clear. Law should be drafted in order to instil certainty, as businesses need certainty to invest. I do hope that it is quite unintended that software could be caught by the drafting of the exception. Eight words are all that is required to fix the problem.

“Software raises very different considerations to content like music and ebooks. There is a backup right long established in law for the lawful acquirer. Neither, as provided under EU law, do concepts such as reverse engineering apply to content. As presently drafted, the exception would permit a licensee of software for use on one computer to make any number of copies for use on other computers. Any licence agreement to the contrary would be overridden.

“We are concerned that such a consequence could inevitably reduce software licence sales to the detriment of software houses and could drive up prices to the detriment of licensees. Such a result would be wholly inconsistent with the Government’s laudable objective that the introduction of the permitted act would cause a “minimal impact on sales” and “minimal, if any, harm to rights holders.” 

Julian went on to state that a small addition to the draft s.28B(1) is all that is needed to disapply the exception to computer programmes: “(1) Copyright is not infringed where an individual uses a copy of a copyright work (other than a computer programme) which has been lawfully acquired by him to make a further copy of that work…”