Private Copying Exemption Quashed by High Court

Reference: [2015] EWHC 2041

Court: High Court

Date of Judgment: 17 July 2015

On 17 July, in the case of BASCA & Ors, R (On the Application Of) v Secretary of State for Business, Innovation And Skills, Mr Justice Green in the High Court quashed regulations introduced by the government last October which allowed members of the public lawfully to copy CDs and other copyright material bought for their own private use.

This follows an earlier decision of 19 June in which Justice Green held that the government had erred in law when it decided to introduce the private copying exception without also introducing a compensation scheme for songwriters, musicians and other rights holders who faced potential losses as a result of their copyright being infringed.

The Copyright and Rights in Performances (Personal Copies for Private Use) Regulations 2014 introduced an "exception" into UK copyright law permitting the making of personal copies, as long as they were only for private use. Prior to this, it was unlawful, for example, to rip or copy the contents of a CD onto a laptop, smartphone or MP3 player for personal use, although such "format-shifting" activity had become commonplace.

However, a condition attached to the right of Member States to introduce such an exemption stated that if the newly permitted use caused more than de minimis harm to the copyright owner then compensation had to be payable.

Unlike other EU jurisdictions, the UK government did not introduce any such compensation scheme. By limiting the copyright exception to private use, the UK government argued that compensation was not due for two reasons:

As most people already assumed they were entitled to copy content they had acquired, they were not likely to purchase additional copies of the same content - ‘in other words there was no automatic correlation between the desire to copy and lost sales’ [12].
The copyright industries already priced-in private copying. Thus, again, the loss caused by legalising private copying was minimal [13].

Shortly after the private copying exception came into force, a number of music industry stakeholders applied for Judicial Review of the government’s decision

Justice Green ruled last month that the evidence relied on by the government simply did not justify the claim that the harm would indeed be de minimis. UK Music, one of the parties in the case, estimated that the new regulations would result in loss of revenues for rights owners in the creative sector of £58 million a year.

On 17 July, the High Court formally quashed the exception, with the effect that acts of private copying which would have fallen under the exception, now constitute acts of infringement.

In making this decision, Justice Green said:

"It is clear that I should quash the regulations. I make clear this covers the entirety of the regulations and all the rights and obligations contained therein."