Last month we examined the pros and cons of the Government's proposed tape levy. Now let's carefully examine what their plans are.

The White Paper naturally is far more intricate than any of the corresponding Green Papers that preceded it. Moreover, whereas Green Papers present possible proposals for perusal, White Papers are detailed discussion documents often destined to become law. (Another alliteration addict — Ed). This paper is due to be debated as soon as parliamentary time permits. It's divided into two halves, the first part dealing with public responses to the Green Paper 'Intellectual Property Rights and Innovation' (1983) and the second part setting out the new Government proposals. But like so many Government documents, this one is very unclear in places, and it's often not obvious to the layman which proposals apply to which aspects of the media.

To start with basics, the Paper explains the concept of what it calls 'intellectual property'. The Government observes the right of individuals to own their ideas, and protects that right through the rules of patent and copyright once those ideas have been made public. It obviously wishes to extend that protection in certain areas, and in doing this they take three main rules into consideration; new legislation must keep abreast of developing technology, a balance must be struck between the protection of the creators' ideas and ensuring public access to those ideas, and no unnecessary red tape should be involved.

Before moving straight on to details, there are some general propositions that the Paper sets out as it's main courses of action. Not all of these have a bearing on the blank tape levy question, however.

Amongst the White Paper's general proposals are:

1. To extend the jurisdiction of the Performing Rights Tribunal (the body at present dealing with disagreements in copyright areas) to include settling disputes between those issuing and those requiring licences in any area where a licensing scheme is involved. The Government see this particularly applying to the areas of photocopying and recording from the TV or radio for educational purposes.

It will also now be called 'Copyright Tribunal'.

2. To introduce a levy on blank audio tapes to remunerate copyright owners and performers. No levy on video tape is planned. The Government is conscious that a levy inevitably involves a degree of 'rough justice' and has taken steps to minimise this difficulty, particularly in respect of blind and other visually handicapped people. Any disputes over the distribution of the proceeds or the rebates of the levy are to go to Copyright Tribunal.

3. To abolish the statutory recording licence system. If a record maker has authorised another party to make recordings of a record for retail sale, it will no longer be open to anyone to do so.

4. To abolish 'conversion damages:' damages at present awarded by the courts to those whose copyrights are infringed.

Naturally the second of these measures will be of greatest concern to most, so let's take a look at this in further detail.

The levy will not be a subsidy or compensation for lost sales; it will be a payment for the right to use property. As such it will remain completely independent of the financial position of the recipients. Nor will the levy be related to the value of copyright material or extent of their use. It will also be independent of the performance of the record industry (which in any case has become healthier in the last two years) and of financial success of the performers.

So how much will the levy exactly be, and will it increase once implemented? Basically, it will become the responsibility of the Secretary of State to determine all the rates of levy for each recording medium, but this will be subjected to an overall maximum of 10% of the total retail sales value of the cassette, excluding VAT. Therefore the levy will not rise year by year, as was feared after the publication of the 1985 Green Paper, except in pace with production costs. The 10% rate compares closely with the rates in those countries that have already implemented a levy: France, West Germany, Portugal, Austria, Finland, Hungary, Iceland, Norway and Sweden. It must be said that this is not an extortionate amount by any standards, and from the practical point of view is not as bad as was once feared but it would be easier to swallow if one could have any confidence that the cash would eventually end up in the right hands and not just become another source of tax..

The levy would entitle any member of the public to record any kind of material on any audio cassette tape, regardless of whether the levy had been paid on it or not.

A great advantage with this legislation is that it would be more easily enforceable than the present law. As far as the penalties are concerned, avoidance of levy will carry a penalty of £2000. All disputes on the amount paid in penalties will go to Copyright Tribunal. Moreover, all the existing penalties for copyright infringement and knowing possession of illegal copies will be extended to all forms of copyright material.

Not only will these penalties be extended, but so will powers of search and seizure; if the law is passed, magistrates will be able to grant the relevant search warrants with respect to any copyright material.

Exemptions to Prove the Rule

The Government do intend to provide relief from the levy in certain cases. In particular they're keen to allay any criticism of their attitude to the blind and the handicapped. As expected these people will have to pay the levy rates but will be able to claim back the cost of the levy. As far as blank cassettes used for educational purposes are concerned, all educational organisations will be treated in the same way as consumers; they will have to pay the levy but will be able to legally record any previously recorded programmes. For blank video tapes, a compulsory licensing system will be instituted for educational establishments instead of a video levy. Those with licences will have the right to record any educational video material. Copies of these recordings may also be made under licence. The terms under which such licences are granted, however, is completely at the discretion of the Copyright Tribunal.

Although no levy will be raised on video tapes, there is an interesting clause in the fine print of the Paper that indicates that if a levy on any other blank recording medium is considered necessary, the Secretary of State alone will have the power to impose such a levy by Order and determine its value, as long as he or she is satisfied that that medium is being used to make private copies of copyright material on a significant scale and that this prejudices the legitimate interests of the copyright owners. This, then, leaves the door open to putting a levy on blank video tapes and computer discs without a debate, despite the fact that video tapes are specifically exempt from this White Paper. Also this means that tape manufacturers have no say at all in the levy's price. The reason given for this is stated that it will reduce negotiation costs.

As expected, the levy will not apply to short-length dictaphone tapes (not usually used for breaking copyright), only on those of over 35 minutes total playing time. Nor will there be any royalty to be payed on reel to reel tapes. These are not considered a threat because the number of people recording copyright material on them is very small. However, if the practice became more widespread, as we have seen, it would be a simple matter to introduce one.

Another issue that came in for discussion in the Paper was the home taping of prerecorded computer programs. This is to remain illegal, even if it is performed on a cassette upon which a levy has been raised. In most cases, though, computer cassettes are less that five minutes long, so no levy would be raised on them anyway. But there's a problem here because this law is unenforceable as it stands; the White Paper does not extend itself to solving this problem.

But what about a levy on the equipment needed for illegal copying? Well, here the Government runs into trouble. The White Paper specifies that gear designed with this use in mind must be 'delivered up.' But how do you indicate which sort of equipment this covers? It's possible to use, for instance, a double cassette deck (ideal for illegal home taping) perfectly legally, just as you can turn a perfectly innocent stereo system into an illegal copying setup simply by inserting a lead into the relevant sockets.

Fair Play

The Government has tried to ensure fair play where the import and export of tapes is concerned. Any tape imported into the UK will be liable to the levy, which would be paid by the first traders of the tape in the UK. Moreover, If copyright material is copied on to tapes in another country, where it may be perfectly legal, it will be regarded as breaking copyright to import them into the UK without the permission of the original copyright owner. No levy is to be raised on tapes exported or re-exported from the UK, however. Other countries would raise their own if it were applicable. The Government has also tried to be as fair as possible where the distribution is concerned. Although the Secretary of State will specify who benefits financially from the levy, a new collecting society will be formed to distribute the levy proceeds, (subject to the Secretary of State's approval). It will have to produce an annual report that will be published.

This collecting society will give rebates to organisations and individuals in these organisations (though not private individuals), who make significant use of blank tapes without infringing copyright.

Odds and Ends

In instituting a new law as complicated as this, there will always be a large number of related matters to be cleared up. One of these points concerns the Statutory Recording Licence. This is a system whereby the owner of copyright material in a musical work loses control over that music's reproduction once he has given permission to another person to reproduce that music. Originally, this was introduced in 1911 to encourage growth in the recording industry. The general view is that the licence has outlived its usefulness. There's a danger that the repertoire of each record organisation will become entirely 'in-house' and that may well lead to a lack of variety for the consumer.

Under the new law, the Statutory Recording Licence will be abolished and transitional arrangements will be instituted to cope with future sales of recordings already under the SRL system. As usual, any complaints go to Copyright Tribunal.

Then we come to the matter of Conversion charges. This is the name for money paid to the copyright owner to reimburse him or her for sales lost through illegal copying, and these charges are also to be abolished. At present they're paid once the offence is discovered, but they are supposedly to be replaced by the levy. However, if an illegal copying offence is discovered, the courts will have the power to award extra payments on top of the levy to anybody suffering unduly from the effects of home taping.

So, in a bit more than a nutshell, these are the new Government proposals on the blank tape levy.

Concluding the Case

The facts about this issue are sometimes confusing and often coloured by a biased attitude. Literature representing one side of the argument is obviously slanted and this naturally confuses the public. What is certain, though, is that the Government will debate this Bill as soon as they can and once that happens, the likelihood of it becoming law is very great.

The Government is obviously aware that a lot of work will have to go into the management of the royalty system, but ultimately whether it will prove worthwhile, weighing up the benefits and disadvantages of the system will never be known until the system moves into operation.

Whether this law will benefit you or not depends upon your position. Some stand to gain, as indeed the Government intend, although by how much must remain unclear until the Bill is actually passed by parliament. Others stand to lose, and it is to be hoped that those who do will not be hit too hard. As for the average consumer, although the practicalities and even the ethics behind this law are questionable, the net cost will almost certainly be within the bounds of acceptability. Where home or professional studio owners are concerned, it's a different story. The levy will be at best both inconvenient and morally unjustifiable. To raise a levy on all blank tapes is to imply that the function of these tapes is to record copyright material, which of course is not the case with anyone recording in a studio. Granted, the Paper does include provision for reimbursement, but it's a cumbersome corrective measure. The Government's basic presumption that anyone buying a blank cassette intends to infringe copyright is wrong in principle. If you consider that many of tomorrow's professional musicians are among today's home recordists, the situation takes on a touch of irony. It's hard enough nowadays for the struggling band or artist to become successful even in a small way. They have enough obstacles to overcome (not the least of which are often record companies) without the chances of getting their music to the public being directly penalised by the Government. Despite their concern for the blind and handicapped, which many see as having misfired anyway, they have attributed little importance to all the others who use blank tapes legitimately and legally.

So why introduce the levy at all? The record industry is on an even keel, as is the blank tape industry. Nobody yet knows exactly who will benefit and by how much. Neither do they know how much damage the levy will do to blank tape sales and consequently how much damage it will do to the variety of recorded material available to the consumer. Cutting down on the consumers' choice will inevitably mean a loss of income for the copyright owner at the end of the day.