Court Quashes Private Copying Exception

The UK Government will have to review its decision to permit private copying for personal use after the High Court in London quashed the The Copyright and Rights in Performances (Personal Copies for Private Use) Regulations 2014 ("Regulations").

On Friday 17 July 2015, Mr Justice Green ruled in favour of a judicial review brought by BASCA, the Musicians' Union and UK Music against the Secretary for the Department for Business, Innovation and Skills ("BIS").

As a direct consequence of this, he quashed the Regulations which implemented Section 28B of the Copyright Designs and Patents Act 1988 (CDPA 1988), with prospective effect. This means that it is no longer legal to make copies of copyrighted works for one's own personal and private use. As a result, any copies made from when the Regulations came into effect on 16 October 2014 until 17 July 2015 are legal anomalies and are legal. Copies made for personal use before 16 October 2014 and after 17 July 2015 will however be illegal.

Green J accepted the claimants' application, however he did not expressly rule on the actual compatibility of UK exception for personal copies for private use with EU law, and actually envisaged the possibility of a reference for a preliminary ruling to the Court of Justice of the European Union ("CJEU").

Background

The Regulations ushered in, by way of introducing a new section 28B to the CDPA 1988, three exceptions ("Exceptions") to copyright infringement entered into force including: (i) private copying, (ii) quotation and (iii) caricature, parody and pastiche. The Exceptions were intended to broaden the way in which copyright material was used in the UK and to enhance the recommendations of the 2011 Hargreaves Report to promote innovation and drive economic growth. These changes were thought to also bring the law up to date with common day practice.

The Regulations permitted individuals to make personal copies of any copyright works (other than computer programs) for private, non-commercial use, provided the original was acquired lawfully and permanently. This change allowed copying for purposes such as format shifting (e.g. digital storage of music purchased on CDs), back-up, and storage on a private cloud, provided the copier owns the original.

Regulations invalidated ... but only with prospective (and not retrospective) effect

In his earlier judgment Green J did not invalidate section 28B CDPA 1988, though he highlighted how failure on the side of the Government to provide adequate evidence to justify the lack of a fair compensation requirement could be "sufficient ... to result in the decision [to adopt s28B CDPA] being rendered unlawful".

Under the EU Information Society Directive, exceptions to copyright are permitted so long as there is compensation to rights owners, unless there is no or de minimis harm.

In June, the same judge had found that the decision to introduce the Section 28B exception in the absence of a competition mechanism was unlawful. The judge noted that "the decision adopted by the Secretary of State was nowhere near to being justified by the evidence that the Minister specifically accepted and endorsed".

Now?

It is unclear what the future is regarding private copying in the UK. It is also unclear whether the Government will survey the likelihood of harm of this exception. There is no doubt that consumers consider private copying a legitimate activity which is reinforced by the way copying and storage devices are sold.

R (British Academy of Songwriters, Composers and Authors and others) v Secretary of State for Business, Innovation and Skills [2015] EWHC 1723 (Admin), 19 June 2015