|(Post-lunch) format shifting|
- format-shifting (e.g. from a CD onto your MP3 player)
- time-shifting (e.g. saving Downton Abbey onto your Personal Video Recorder or PVR) or
- making back-up copies.
Importantly, the exception permits the creation of a copy of the work in certain circumstances (i.e. it is a permitted act in relation to the reproduction right); it does not therefore extend to other uses of the work such as communicating or distributing the work to the public.
It is also worth noting that Recital (35) to the InfoSoc Directive provides that “in circumstances where the prejudice to the rightholder would be minimal, no obligation for payment may arise”. In other words, where there is minimal or de minimis harm, no fair compensation is required.
- What constitutes “harm” suffered by the author, and in what circumstances is there “minimal” or "de minimis" harm such that fair compensation is not required? [Further clarity on what constitutes de minimis harm will hopefully be provided in the pending Copydan decision. This is a key point in the pending judicial review application before the courts of England & Wales in relation to the UK’s failure to provide a levy system in its implementation of the private copying exception – see The 1709 Blog post here.]
- Who is responsible for discharging the obligation to pay fair compensation: should it be the manufacturer / producer, the importer, the reseller / retailer? [Whilst Member States enjoy a broad discretion in this regard (see Case C-462/09 Thuiskopie), this issue still requires further clarification, particularly in the context of multi-level, cross-border distribution systems where it might not be possible to know whether the final end-user is a business or private user]
- Does the levy system safeguard a “fair balance” between the interests of authors and the end-users of the work? [One point which arose in striking this “fair balance” was whether the exception applies only to lawful copies of the work, to which the CJEU’s response in Case C-435/12 ACI Adam was Yes – see previous Katposts here and here]
|Is copyright in a catatonic state?|
A helpful resource on the global position in relation to private copying – see the International Survey on Private Copying: Law & Practice 2013 (23rd ed.) here.