UK Games Trade Body Criticized Over Backups

Thanks to NTK for their article about a gamer taking the UK games trade body to task over their anti-backup FAQs. According to the piece, "Rogue gamer Stuart Campbell [is] tackling [UK-based] games-biz body ELSPA, this time over the informatively incorrect FAQ on their website. 'Am I legally entitled to make a backup of my original software?' you ask; they used to unequivocally answer: 'No'." But Stuart found evidence allegedly allowing "a lawful user of a copy of a computer program to make any back-up copy of it" in a 1988 UK law, and whether definitely true or not, ELSPA have "...now modified the wording to warn against backing up the 'film and sound' copyrights which they believe games inevitably contain." Campbell was previously involved in the Fairplay campaigns against cheating slot machines and overpriced videogames.

huH?

[IIRCAFAIKIANAL]

In the UK, are you not allowed to backup music or movies?

Re:huH?

[BobTheLawyer]

no - we have no fair use right (although the House of Lords once came close to creating one). There is a specific statutory right for software.

Back that tape up.

[mnmn]

So my CD is gathering scratches or is simple deteriorating. I cant back it up? Or how about our ERP system on the server, along with 12 other applications and databases run our company. I cant back that up?

You know what will happen? People WILL back their files up regardless. They WILL produce copies at will and not feel criminal about it. Such laws will only make it more acceptable to break laws in general, making them less relevant. They should've learned from bringing down highway speed limits to 100kmph. Everyone still drives at 120, and cops only stop the ones driving at 125 or higher. The legal authority becomes a joke.

Re:Back that tape up.

[realdpk]

Makes you wonder if the UK government IT departments are making illegal backups (after all, things like Word come with some sounds and movie-tutorials don't they?) or if they're running naked/protectionless.

the FAQ is still mispresenting the law

[BobTheLawyer]

the law in question is section 50A of the UK's Copyright, Designs and Patents Act 1988 - see http://www.jenkins-ip.com/patlaw/cdpa1.htm#s50A

The FAQ is just wrong. Whoever wrote it is pig-ignorant of the law or lying.

They claim that section 50A applies only to the copyright in software, and therefore if the software contains film and sound recordings then the backup right doesn't apply to the software.

Wrong. Section 50A(1) states "It is not an infringement of copyright" for a user to make a copy. The section refers to copyright in general and not specific types of copyright. It has to work this way: any software is going to contain zillions of different types of copyright in the art, design, sounds, documentation etc.

They then claim that in ELSPA's view it is no longer "necessary" for lawful users to make backups because CDs are more reliable than discs, and manufacturers will replace when asked. Given that it's standard business practice to backup CDs I find their view of the word "necessary" rather surprising, and I think a Court would too. Their reference to "the judgment in the case relating to the illegal chipping of PSX consoles referred to below" is irrelevant.

Finally note that section 50A doesn't restrict you to one backup copy: if two or more are necessary it would equal permit that.

ELSPA?

[JasonMaggini]

Sounds like the name of one of those scooters you see people riding around in Europe.

The new Honda ELSPA!

I don't know much about UK law...

[failrate]

...but in the US, it is considered fair use to make backups of any medium you legally purchase. This does not include the sale of the medium or distribution thereof, wherein "piracy" DOES come into question. If I own a CD, I can legally create any copy of that CD in any form (MP, Ogg, BMP, anything...), but I do NOT have the right to redistribute it without authorization of the license holder. It doesn't matter what the medium is, I can produce copies for my own use.