Suppose I have lawfully purchased an ebook for myself, on a permanent basis. Section 28B "Personal copies for private use" of the Copyright, Designs and Patents Act 1988 seems pretty clear that I'm allowed to make a copy of this ebook, and even contains the magic words:
To the extent that a term of a contract purports to prevent or restrict the making of a copy which, by virtue of this section, would not infringe copyright, that term is unenforceable.
So it seems like I should be able to, no matter what the publisher says. But a 2014 article in The Register disagrees:
The government has bungled proposed changes to UK copyright law by claiming the format of eBooks can be legally changed - for example, from the Amazon kindle format to a PDF.
The "personal use" changes throw the eBook market into confusion, as they misleadingly suggest that the buyer can then strip the book of DRM. In fact, Mollett explains – and two other legal experts we spoke to corroborated this – a publisher can implement protection (like DRM) when a purchase is made "at the time and place of the user's choosing". Stripping it would put the user in breach of EU law.
"It's ridiculous to say hacking the DRM is possible because pretty much 100 per cent of the time it will be illegal," said Mollett.
EU copyright law distinguishes between a right to make copies, covered in Article 5(2), and "communication to the public", aka the "making available" right covered in Article 5(3).
Spotify streams and Kindle and iTunes come under Article 3. The UK isn't permitted to allow format-shifting under Article 5(3) - that's a 5(2) matter. Such fundamentals seem to have eluded the UK Intellectual Property Office, which drafted the law.
And looking more closely, legislation.gov.uk includes a note in small writing at the bottom of the page:
S. 28B inserted (1.10.2014) by The Copyright and Rights in Performances (Personal Copies for Private Use) Regulations 2014 (S.I. 2014/2361), regs. 1(1), 3(1) (with reg. 5) (but note that the amending S.I. was quashed with prospective effect by the High Court in the case of R (British Academy of Songwriters, Composers and Authors and others) v Secretary of State for Business, Innovation and Skills [2015] EWHC 2041 (Admin), 17 July 2015)
The UK has left the EU now, but I get the impression that this high court ruling was unrelated to the EU. Where does this leave the legal status of DRM-stripping and format shifting? Is this part of the law not actually law?
Via copyrightuser.org, I found a copy of this ruling:
The net effect is that I quash the Regulations in their entirety. I rule that the quashing has prospective effect. I decline to make any ruling as to whether or not the Regulations are void ex tunc.
What if I'm disabled? The gov.uk website says:
One exception allows you, or someone acting on your behalf, to make a copy of a lawfully obtained copyright work if you make it in a format that helps you access the material. For example, if you buy a book from a shop then make a Braille copy to help with a visual impairment then you are not infringing the copyright in the book.
(Several conditions apply to this exception; I have omitted them because this question's already long enough.)
The Equality Act 2010 defines disability thus:
A person (P) has a disability if—
(a) P has a physical or mental impairment, and
(b) the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities.
What if I'm not disabled under the Equality Act's definition (afaik, CPDA doesn't reference the Equality Act), but am nonetheless incapable of fully using the DRM'd media, for whatever reason? For example:
- if my tiny smartphone gives me headaches if I look at it too long, so I want to read on my big eInk tablet;
- if I can read, but I find it easier to process things aurally, so I want to chuck the book through a speech synth;
- if the idea of losing access to the ebook unexpectedly, and the uncertainty about when and whether access will be able to be restored, is highly distressing – suppose it's my textbook, and it's exam season.
Under the social model of disability these should count:
The social model of disability is the understanding that disability is something that is created by society.
Disability isn’t something that exists inside your body or your mind. It’s something that is created by an inaccessible society.
but is this sufficient for the Copyright, Designs and Patents Act? The law seems to be aimed at those with vision problems; the relevant section of the law has the label visual-impairment in the computer system, and the government webpage about it links to The Marrakesh Treaty.
Copyrightuser.org says:
In this commentary we use the term ‘disabled person’ rather than ‘person with a disability’ mainly because it matches the terminology of the relevant law. It also fits to the ‘social model of disability’: that is, persons do not so much have a disability as are disabled by their environment.
The exceptions apply to both physical and mental impairments, but this does not include visual impairments which are minor enough to be corrected by the use of glasses or contact lenses.
but this isn't actually an official source.
Said gov.uk webpage also says:
TPMs can play an important role in enabling copyright owners to offer content to consumers in different ways, as well as preventing piracy. EU and UK law protects the right of copyright owners to use TPMs to protect their works, and circumvention of such technology is illegal.
This sounds pretty clear: "technological protection measures" (a much better name for DRM!) are illegal to circumvent. But what is circumvention? Is it illegal to take a photograph of a computer screen displaying a work "protected" in this way? Given the way most DRM systems work, you need to bypass or subvert them in some way in order to produce accessible versions of a work:
copy-pasting from an ebook app into a speech synthesiser requires bypassing the anti-copy-paste "protection measure" in the app;
lending somebody else the ebook, in order to produce an audiobook version for your personal use, requires either:
- subverting the "licensing system"; or
- giving somebody else your account details
both of which are forbidden by most DRM systems I know of.
Consider another situation: most of my computer systems are connected to my hearing aid, but my television refuses to send audio from my Blu-Ray player to it no matter what; something about HDMI, HDCP, and the hearing aid not being a certified device. If I copy the Blu-Ray disc to my phone (which lacks a Blu-Ray reader, but does connect to my hearing aid), screencast to the television, and play it that way, am I breaking the law?
How-To Geek gives another solution:
Short of buying a new television or giving up on your video game project the only way to deal with your HDCP compliance problem is to buy a cheap HDMI splitter that ignores HDCP requests.
We really wish we were kidding, but that’s the secret media center ingredient that has helped thousands of consumers and the very same secret ingredient that we use here at How-To Geek when we need to take screenshots of an on-screen menu to showcase a product we’re reviewing.
If I purchase and use equipment to bypass this technological protection measure, where doing so meets a legitimate accessibility need (the extra microphone-speaker pass adds latency, and does degrade the sound quality), is this unlawful?
Via copyrightuser.org, I found Intellectual Property Office guidance: Technological protection measures (TPMs) complaints process:
UK law protects the right of copyright owners to use TPMs to protect their works, and circumvention of such technology is illegal.
However, use of TPMs could potentially prevent activities that are permitted by copyright exceptions. More information is available on copyright exceptions. The law therefore provides for a complaints process that aims to ensure that a TPM does not unreasonably prevent people from benefiting from an exception.
While I'm on the subject, is How-To Geek's use of this workaround legal? (Pretending for the moment that How-To Geek are in the UK.) Screenshots of an on-screen menu used for a review are clearly fair dealing, but they're bypassing a technical measure, and it is copyrighted material.
In summary, I have no clue what the legal situation surrounding format shifting and DRM is in the UK. Is it actually legal to do so – and if so, under what circumstances?
