Private Copying Exception is deemed unlawful

In October 2014, the eagerly anticipated copyright exceptions came into force via a series of amendments to the Copyright Designs and Patents Act 1988.

Background

Many thought the exceptions, which transposed certain provisions of the Copyright Directive (2001/29/EC) into English law, were long overdue to bring the law up-to-date with modern reality.

One amendment was the introduction of a private copying exception allowing individuals to make a personal copy of a copyright protected work for their own private use - an action many individuals had thought was a legitimate practice already.

In addition to the private copying exception, many other member states had introduced a levy or surcharge on equipment which can be used for private copying to compensate rights holders for the loss of any revenue as a result of the exception.

However, in the UK the Secretary of State deemed that a compensation scheme was not necessary as there was only de minimis harm to rights holders by the introduction of the private copying exception. As such the private copying exception was introduced without a corresponding compensation scheme.

Unhappy with the Secretary of State's decision, a number of rights holders brought a judicial review action claiming (amongst other things) that the decision not to introduce a compensation scheme was flawed as the evidence relied upon was inadequate and unsatisfactory.

Decision

The High Court agreed with the rights holders and found that the introduction of the exception for private copying without a compensation scheme was unlawful as the inferences drawn from the evidence relied upon were not warranted or justified.

Green J held that whilst it was acceptable for the Secretary of State to have common sense intuitions on whether a compensation scheme should be introduced, these intuitions should have been a starting point in the analysis and were not capable of answering the specific legal question of whether more than de minimis harm to rights holders would occur as a result of the introduction of a private copying exception.

However, even though Green J found that that the private copying exception was unlawful he did not strike it out. The judge was careful to grant the Secretary of State three options to rectify the error, including the introduction of a compensation scheme, removing the private copying exception, or undertaking the necessary qualitative and quantitative surveys to determine whether a compensation scheme should be introduced.

The judge granted the parties leave to make submissions to determine whether any issue of law needed to be referred to the CJEU and whether any appropriate relief was required given his conclusion that the Secretary of State's decision to introduce the private copying exception was unlawful.

Comment

It's unclear whether the government has any plans to undertake a quantitative and qualitative survey to demonstrate a lack of harm. Whatever happens next, it is absolutely clear that change is required. Consumers consider private copying is a legitimate activity which is reinforced by the way copying and storage devices are currently sold. The law has failed to keep up with consumers' expectations and it will be interesting to see what action the government takes in light of this decision.

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