Second Call for Comments - 'Fair Compensation for Acts of Private Copying'. British Music Rights comments.
18 April 2008
British Music Rights is the voice of Britain’s 50,000 composers and songwriters, music publishers and their collecting societies. The members of British Music Rights are the British Academy of Composers & Songwriters [BACS], the Music Publishers Association (MPA), the Mechanical-Copyright Protection Society (MCPS) and the Performing Right Society (PRS).
We commented on the fundamentals of private copying in the stakeholders consultation on copyright levies in a converging world in July 2006. But we are not in a position to answer the questions on the practical application of private copying levy schemes since such a system does not exist in the UK as there is currently no private copying exception under UK law which merits private copying remuneration.
As the Commission is certainly aware, the UK Government is discussing the introduction of an exception for “format shifting” following the Gowers Review of Intellectual Property. This is aimed at the practice of transferring music from a CD to an MP3 player.
“Introduce a limited private copying exception by 2008 for format shifting for works published after the date that the law comes into effect. There should be no accompanying levies for consumers”.
Recommendation 8 of the Gowers Review
The UK Intellectual Property Office is currently consulting on how best to implement this Recommendation into UK law. www.ipo.gov.uk/consult-copyrightexceptions.pdf. The deadline for comments was 8th April 08 and we expect further legislative proposals by end of the year.
The UK music industry, represented by the Music Business Group, has just put on the table a proposal in response to this consultation: An exception to copyright for “format shifting” subject to a licence. This proposal does not represent a tax or a private copying levy, but an easily implemented, flexible and future proofed solution which:
The full paper is accessible via: www.bmr.org/page/submissions
We are at the disposal of the Commission to explain our approach in detail at a meeting in Brussels.
I. Principle: There is a direct benefit in the transferability of music for both consumers and the commercial enterprises which manufacture and distribute devices that enable format shifting. Composers and performers are legally and morally entitled to benefit from this value chain. We highlight the importance of fair compensation for creators in exchange for the private copying exception.
As acknowledged by Commissioner McCreevy in his press release accompanying the questionnaire: “There can be no question of calling into doubt the entitlement of rights holders to compensation for private copying.” It would appear that public opinion supports this. The UK’s largest academic survey into the music consumption habits of young people, recently undertaken by British Music Rights and the University of Hertfordshire, showed that 90% of young people who supported a licensing system agreed that creators should be compensated.
II. The mechanism: The Music Business Group is proposing that any new exception to UK Copyright law for “format shifting” be qualified by additional provisions to enable the licensing of device manufacturers and distributors. Given the reluctance by UK Government to introduce a private copying levy, this constitutes a compelling proposal to ensure the fair compensation mandated by Art 5 (2b) Copyright Directive.
An exception combined with a licensing system provides a mechanism which is flexible and responsive to market realities, allowing consumers to enjoy the benefit of the exception whilst taking into account the business models of licensees and at the same time assuring creators and performers that their creativity will be rewarded.
The licence fee would be determined by commercial negotiations between creators and right holders and manufacturers and distributors of devices substantially used or marketed for copying music.
Precedents for an exception subject to licensing already exist under UK copyright law and operate successfully. A well tried and tested scheme applies in the case of the recording of broadcasts for educational purposes (ERA scheme under Section 35 Copyright Designs and Patents Act 1988 – www.era.org.uk). Collecting societies in the UK have been operating the ERA Scheme for several years and are well equipped to collect and distribute the licence fees to creators and right holders in a transparent and efficient manner. The Music Publishers Association introduced a similar scheme more recently for multiple copying for those who are visually impaired but this is for a nominal consideration due to the special circumstances.
On the technology side, every single owner of a MPEG player living in the EU is already part of such a licensing scheme. For some time, technology companies have been paying the owner’s of MPEG decoding software for the use of their copyright, in very round numbers about £1 per MPEG player. There is no reason why this should be any different for the one totally indispensable ingredient in all of this: Music.
We are assured that the Commission will be monitoring the developments in the UK during their comprehensive consultation with all stakeholders.
British Music Rights
British Music House, 26 Berners Street, London W1T 3LR
T +44 (0)20 7306 4446 E: britishmusic@bmr.org W: www.bmr.org