Private copying exception to copyright subject to application for judicial review | Fieldfisher
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Private copying exception to copyright subject to application for judicial review

Tim Johnson


United Kingdom

On 1 October 2014, legislation came into force to implement new exceptions to copyright infringement.

On 1 October 2014, legislation came into force to implement new exceptions to copyright infringement.  One of these, the exception to allow personal copying for private use, is now subject to an application for judicial review by three bodies in the music industry.

This new exception allows individuals in the UK to make a personal copy for their private use of copyrighted material they have lawfully and permanently acquired, provided it is not for commercial purposes. This explicitly allows format-shifting, for example converting audio files from a CD into MP3 format, making back-up copies and storing personal copies in the cloud without infringing copyright.

In November 2014, the Musicians' Union (MU), The British Academy of Songwriters, Composers and Authors (BASCA) and UK Music launched a judicial review application against this new legislation.  The reason stated by BASCA for this is that the exception fails to "provide fair compensation for songwriters, musicians and other rights holders within the creative sector". Although BASCA state they are behind a measure enabling consumers to make a copy of legally acquired music, they feel it will "damage the musician and composer community". They emphasise that fair compensation is at the "heart" of copyright laws which in the words of Jo Dipple, CEO of UK Music "enables people to earn a living out of their creativity and sustains jobs".

Andy Heath of UK Music said "the private copying legislation has ramifications, both national and international that puts all rights owners at risk. There has to be a point at which we say we believe in copyright and we will defend it against this or other government's efforts to devalue it."

The main question is whether in creating this exception the UK government has contravened Article 5(2)(b) European Copyright Directive. This provision gives member states the ability to implement exceptions or limitations in respect of reproductions made by a natural person for private use "on the condition that the rightholders receive fair compensation".

A mechanism for compensation which has been used by other states is for manufacturers of blank media or devices used for copying to give a small amount of their profit back to musicians. When implementing this exception the UK government considered that compensation was not required because there would not be lost sales for rights holders. This was due to the fact the legislation was simply legalising the commercial reality of what most consumers do routinely.

The aim of this application is that the judicial review process will ultimately lead to an amendment to the legislation.  However, the nature of a judicial review application is that the court will only be able to examine the decision making process rather than the ultimate outcome.

Hopefully through the judicial review process the legislative decisions which have been made, the consideration given to the industry and how it can be commercially sustained despite developments in technology, will come under sufficient scrutiny to ensure an outcome which fully addresses fully all the relevant economic, cultural and commercial issues.