"Please, Secretary of State, get me access to a TPM-free CD"
As readers may be aware, "format shifting" has been legalised with effect from 1 October 2014, albeit subject to certain conditions, as a result of amendments recently made to the Copyright, Designs and Patents Act 1988 ("CDPA").
Consequently where, for example, you lawfully own a CD or DVD you are now permitted to make copies of it to enable you to listen to the CD on your iPod or to watch the DVD on your laptop. No doubt this is something that you have been doing for many years – perhaps in blissful ignorance of the fact that what you were doing was actually unlawful.
You may however own CDs or DVDs which are subject to what are termed "technological protection measures" (or "TPM" or "DRM" or copy protection measures) which in fact prevent you making the copies you need in order, for example, to listen to a CD on your iPod. The purpose of these TPMs is to protect against piracy – but they now have the unintended consequence of preventing the general public from exercising their rights to format shift.
In order to address this problem the Government has introduced a statutory right for aggrieved members of the public to complain to the Secretary of State in order to gain access to a TPM-free CD or DVD or otherwise to be given the ability to exercise their rights to format shift. For those interested in the small print this remedy is hidden away in section 296ZEA of the CDPA.
The Government (via the Intellectual Property Office) has recently issued further details of the complaints procedure to be followed and the form which should be completed. Although there is nothing in s296ZEA which makes it a precondition to exercising the right to complain, the IPO has indicated that prior to submitting any complaint you will be required to contact the relevant copyright owner (or owners) with a view to negotiating a solution. Quite how feasible it is for members of the public to identify all the relevant rights owners and to negotiate with multinational media businesses remains to be seen.
If you are unable to negotiate an agreed solution with the rights owners you should then issue a complaint to the SoS for Business, Innovation and Skills using the complaint form which has been published on www.gov.uk.
When considering your complaint the SoS will take account of the right of the copyright owner to limit the number of personal copies which may be made and will consider whether there are already available in the market, on reasonable terms, versions of the work in question that do permit users to format shift.
It will be interesting to see whether and how many complaints materialise – brief summaries of previous complaints and their outcomes will be published on www.gov.uk.