High Court quashes new private copying exception

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Changes to UK Copyright Regime

In October last year, a number of changes were made to the UK copyright regime in the form of new exceptions to copyright infringement. 

Article 5 of the EU Copyright Directive allows member states to create a private copying exception provide that the “right holders receive fair compensation”.  One of the changes introduced into the UK copyright regime was an exception (in new section 28B of the Copyright, Designs and Patents Act 1988) which allows consumers to create a private copy of their legally purchased work (for example music, films etc.) for non-commercial purposes.  However, this new exception did not allow for right holders to receive compensation.  

In the recent case of 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 and EWHC 2041 (Admin) 17 July 2015.)[1], the judge found this new exception to be unlawful and the exemption was quashed.  

Facts of the case

A number of music associations launched a legal challenge against the new rule arguing that it was incompatible with Article 5(2)(b) of the Copyright Directive.

There were a number of legal issues raised in the case, however, the decision came down to the harm that would be suffered by right holders as a result of the new exception.

The defendant claimed that the government was justified in their decision to create the exception by the evidence set out in the consultations and assessments, such as the Hargreaves Review and Intellectual Property Office (IPO) impact assessments, undertaken in advance of the introduction of the exception.  They also argued that the private copying will have no negative harm and the exemption will result in minimal or zero lost sales which minimises the conflict with EU law.

The claimants' submitted that the decision to implement the new exception was flawed because the evidence relied upon to justify the conclusion about harm was inadequate or manifestly inadequate.

The Court accepted this and in his judgment , Green J concluded that the decision adopted by the Secretary of State about harm was not justified by the evidence set out in the consultations and assessments, such as the Hargreaves Review and Intellectual Property Office (IPO) impact assessments undertaken in advance of the new legislation.  The Court therefore found the exception to be unlawful.  Following the receipt of detailed submissions from the parties, on 17 July Green J quashed the exemption.   

What happens now?

The government now can now either:

  • introduce a new exception, this time better supported by evidence regarding the impact that it might have on copyright owners; or
  • leave the law as it was prior to the introduction of the exception last October, with many people believing that what they are doing with their digital content is legal when in fact it is not.