Legality of recording TV and Radio in the United Kingdom

Disclaimer: I'm not a lawyer. This is just one man's interpretation of what the law might mean and may be completely wrong. Always take your own legal advice.

The legal basis for recording TV and Radio programmes in the UK is currently provided by s70 of the Copyright, Designs and Patents Act 1988 (known as 'CDPA') as amended by The Copyright and Related Rights Regulations 2003. Section 70 of CDPA permits the domestic recording of broadcasts for what is known as "time-shifting". This essentially means that individuals are allowed to record TV or Radio programmes to watch/listen to at a more convenient time. This would typically cover such instances as setting the video recorder to tape a programme if you are going to be out, or to record an epsiode of your favourite show whilst you are on holiday.

It is important to note that this protection from copyright does not allow you to keep the recording indefinitely, and you certainly can't make money from it by hiring out the recording or selling it to others. Whilst it is not set out explicitly how long you can hold on to the recording for, a sensible rule of thumb would be 'until you've had a chance to listen to it', at which point you should really then delete or wipe the recording.

Since an iPlayer programme is essentially a reproduction of a 'broadcast' as defined by CDPA, the time-shifting protections of section 70 would appear to apply to iPlayer, allowing individuals to make a copy of a programme to put on their portable media player so they can watch or listen to it at a more convenient time, and without requiring an active Internet connection.

There is one important caveat. The 2003 Regulations introduced new criminal offenses in the area of technical circumvention of digital rights management. In plain english, if the broadcast has been encrypted or otherwise crippled to prevent copying, then you are committing an offense if you sell tools that get round these restrictions, or tell anyone else how to do it. Fortunately the BBC currently provide radio programming via iPlayer in unencrypted RealAudio format.

On face value this would seem to contradict the time-shifting provisions. Indeed, CDPA does acknowledge that this may be the case, and s296ZE of CDPA allows for individuals to complain to the Secretary of State if they feel they have been prevented from enjoying rights granted under CDPA, which includes time-shifting. However, all the Secretary of State can do is 'name and shame' organisations that don't confirm with the Act - there are no meaningful sanctions - and therefore to date no complaints have yet been successfully made under s296ZE.

In the United States the situation is simpler. US copyright law has always had a doctrine of 'fair use' which allows for certain acts to be performed without fear of violating copyright law. The so-called 'Betamax Case', filed in 1976 but only fully settled in 1984, established that time-shifting was 'fair use' and thus acts of recording for the purpose of time-shifting did not infringe copyright.

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