Thoughts on format shifting

Copyright law in the UK allows few exceptions for fair use. People who rip their CDs to make MP3 files for their portable players are actually breaking the law, although record companies have indicated in the past that they won’t pursue people for doing so.

Today, a consultation was announced on changes to copyright law which would, among other things, allow limited copying for purposes of “format shifting” for personal use. The proposal is to make it legal to copy CDs for use on portable players. The consultation is a result of the 2006 Gowers Review of copyright law. At the time, government minister Lord Triesman said that the changes wouldn’t mean people could legally circumvent DRM measures to switch between formats. I think that would make the law of limited use. The new law would probably also only apply to recordings released after is was passed.

The Open Rights Group are preparing their own response to the consultation, and have invited comments on their website. My comments are reproduced (hopefully legally!) below:

How many format shifts would be allowed? Should consumers be allowed to format shift to a range of play back devices and to format shift again when certain technologies become obsolete?

If such a provision is made, it should apply to all formats, including those protected by DRM, and not just to CDs. Any law that fails to address new downloadable formats belongs in the 20th century.

The law should give consumers a right to format shift that can not be “trumped” by contract law. Any such contract would have to contain the disclaimer “This does not affect your statutory rights” or similar, meaning that the consumer always has the right to format shift.

Claims that DRM exists to prevent copying it laughable. The main purpose of it has been to prevent consumers switching formats, which is anti-competitive behaviour on the part of large corporations. If people find they are still restricted by DRM, they will continue to resort to using illicit programs to strip the DRM, or to download unencumbered versions of the music they’ve already paid for via file-sharing networks.

If the new format-shifting law is limited in its scope, consumers will continue to lack respect of the law, which was one of the stated aims of the proposed changes.

Would the exception apply to works created or purchased after the exception was introduced or would it be acceptable to format shift back catalogues?

If the law doesn’t apply to back-catalogues, it’ll only cause great confusion among consumers. How many people understand the difference between the publication date of the CD, the copyright of the recording, the performers’ or composers’ copyrights? If people are told they can’t copy their existing CDs, but can if they buy new ones, they’ll continue to lack confidence in copyright law (and will continue to copy their old CDs anyway) so the change will have been a waste of time.

Restricting the new law to new releases will also discriminate against people who enjoy certain genres of music, such as classical or jazz, where the back catalogue accounts for a larger proportion of sales.

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