Quashing of private copying exemption a 'temporary stay of execution' for music industry, says expert

Iain Connor of Pinsent Masons, the law firm behind Out-Law.com, said that the decision appeared to be "a temporary stay of execution for the music industry", which successfully brought a judicial review against the private copying exception last month. The High Court ruled that the exception was unlawful in June, and last week issued a further judgment quashing the regulations that introduced the exception entirely.

EU copyright laws require EU countries that elect to introduce an exception for private copying into national copyright laws to ensure that rights holders receive 'fair compensation' for that activity. Connor, an intellectual property expert, said that the EU had been wrong to allow the UK to opt out of an associated levy on the grounds that private copying activities would only result in "minimal harm" to rights holders.

"I think it is bad for cross-border trade that the EU directive allowed for a national derogation on levies when so many European countries have operated them for years," he said. "EU law should be harmonised and, while not a forceful argument in the judicial review, it highlights an issue for artists in the UK which does not exist on the continent; strange given that the UK's entertainment industry is second only to the USA."

"Years of failure by the UK's music industry to enforce their rights seem to have doomed their bid to get a levy. Their only hope seems to relate to LPs released by artists in the 1950s and 60s when private copying was pretty much impossible and so there was no premium built into the pricing. By the time CDs came along, it appears to be accepted that the list price included an element to cover the damage unlawful copying caused," he said.

The British Academy of Songwriters, Composers and Authors (BASCA), the Musicians' Union (MU) and UK Music had challenged the UK government's decision to introduce a private copying exception from October 2014, without any associated mechanism for compensating rights holders for the harm caused by that exception.

The change to the copyright laws gave individuals in the UK the right to make a copy of copyrighted material they have lawfully and permanently acquired for their own private use, provided it was not for commercial ends. Making a private copy of a computer program remained illegal under the new rules.

In his initial ruling on the case in June, Mr Justice Green said that although the government had correctly interpreted EU laws permitting a copyright exception for private copying, the government's decision to do so without compensating rights holders was not supported by the evidence. The government had argued that the new exception would not result in lost sales for rights holders, but the judge found that it had not defined a 'de minimis' threshold of harm and had not provided the evidence to support the fact that its threshold had not been met.

The judge was then asked to rule on whether the exception should be quashed retrospectively, meaning that anyone who had copied content for private use once it became legal on 1 October 2014 would now have done so unlawfully. However, Mr Justice Green said this was an "unattractive proposition" and declined to do so. He said that it was "quite possible, and indeed probable, that very substantial numbers of persons commenced copying [on this date] because they had become entitled in law to do so".

In a statement, the UK government said that the effect of the second judgment was "that acts of private copying which would have fallen under the exception now constitute acts of infringement".

"The government is considering the implications of the court rulings ... and the available options," it said.