Wednesday 26 November 2014

UK Private Copying Exception faces Court Challenge

As readers will know, on 1 October 2014, the Copyright and Rights in Performances (Personal Copies for Private Use) Regulations 2014 came into force. This introduced the UK's private copying exception, as contemplated by Article 5(2)(b) of the Copyright Directive (2001/29/EC). At its heart, the purpose of the UK exception was said to be to legitimise format-shifting i.e. it allows consumers to copy music from their CDs onto their MP3 players (which, as you may well be thinking, people have been doing for years anyway, regardless of lawfulness) although it also covers cloud lockers and other types of personal copying. 

The Government now faces judicial review over its implementation of the legislation. The claimants are the British Academy of Songwriters, Composers and Authors (BASCA), Musicians' Union (MU) and UK Music. Whilst they support the introduction of a private copying exception to keep up with the development of technology and practice, the government has introduced the exception without means of 'fair compensation' for musicians, composers and rightholders, as required by the Copyright Directive. 

The lack of compensation sets the UK apart from other EU Member States, whose exceptions provide for fair compensation, usually in the form of a levy on blank media or devices used for copying.  As the UK Music press release puts it  "It is the compensatory element of a private copying exception that lies at the heart of EU law and underpins common respect for the songwriters, composers and musicians whose work is copied."

Or as "The Register" chooses to put it "For reasons known only to itself, officials at the Intellectual Property Office (IPO) insisted that the UK government didn’t have to [introduce a levy], arguing the value of the music was “priced in”.

The judicial review will (if the applicants are granted leave to pursue the case) analyse the government's decision-making leading to the introduction of an exception without the critical element of 'fair compensation', and ascertain whether this means the legislation is ultra vires due to incompatibility with EU law. The complainants' intention is for the law to be re-made, to provide compensation for rightholders. 


Anonymous said...

The difference is that in countries that have a private copying exception with a levy scheme, the levy is to compensate for the private copying of *other people's* purchased copies, not the format shifting of one's own.

The Government considered what would be appropriate compensation for format-shifting by consumers, and they came up with the value ZERO, because consumers have already paid in full to enjoy the music.

The rightsholders got their sale. They have added no further value. They're owed nothing more.

policyperson said...


Surely they only applied for a JR so far. So "the Judicial Review will" is not quite right. Apols if I have misunderstood.


Ben said...

I have always thought that any levy should be split between compensating rights owners - and compensating consumers - who have, as technology developed - been obliged to rebuy content they already 'own'. As a youth who first brought music in the 70s, I have some tracks on vinyl, cassette AND CD - and would stronly object to repaying yet again for digital - and arguably in this format only for a limited licence. I managed to miss out mini-discs and laser discs, other tape formats etc etc but I must have brought Teenage Kicks at least four times!

Anonymous said...

PolicyPerson - in process terms, you are right that the Court must first grant leave, but in considering whether to grant leave, the questions being considered will be the same as those ultimately considered, so I think that "will" is acceptable - have however updated the post accordingly.