After coming into force on 1 October 2014, new regulations that allowed copying of a piece of work that has attracted copyright, such as music, books or films, as long as it is for private use, have been found to be unlawful.

In a pair of decisions dated 19 June 2015 and 17 July 2015 ([2015] EWHC 1723 (Admin) and [2015] EWHC 2041 (Admin)), Mr Justice Green, sitting in the High Court, quashed the recently introduced Section 28B of the Copyright Designs and Patent Act 1988 after an application for judicial review brought by BASCA, the Musicians’ Union and UK Music 2009 Limited.

Background

The new regulations, The Copyright and Rights in Performance (Personal Copies for Private Use) Regulations 2014, had introduced Section 28B to allow copying of a legitimately acquired work (other than a computer program) for private use. Such private use included copying the work into other formats, copying for use as a back-up or storing in cloud storage. The copyright would still be infringed, however, if a personal copy was transferred to another person other than on a private and temporary basis.

These regulations were implemented under the discretion provided by Article 5(2)(b) of the EU Copyright in the Information Society Directive. This gives member states of the EU the scope to create an exception to copyright for personal use, with the requirement that if more than de mininis harm is caused to the copyright holder by any new exception, compensation would be payable.

The UK government had considered compensation, possibly funded by a levy system on sales of blank media such as CDs, to be burdensome and therefore undesirable. Instead, the aim had been to introduce a new copyright exception that would avoid harm to the copyright holder and so would not require any kind of levy or compensation scheme. The Secretary of State’s view, after a consultation process, was that the narrow private use exception of Section 28B would cause zero or de minimis harm and so could be lawfully introduced without a compensation scheme.

The claimants from the music industry sought to challenge the new regulations on the basis that, amongst other factors, the evidence relied upon by the Secretary of State to justify the conclusion about harm was inadequate and could not support the conclusion that the exception would lead to minimal or zero harm.

In the first of the two decisions, Mr Justice Green sided with the claimants and decided that the evidence allowed conclusions to be drawn as a starting point, but were not capable of answering the very much more specific legal question as to whether harm was avoided to meet the de minimis threshold. He therefore concluded that the introduction of Section 28B was unlawful.

By the time of the second of the two decisions, further submissions had been received from the Secretary of State accepting the position that the regulations should be quashed. The Secretary of State welcomed the guidance of the court and said that “he will now take the opportunity to reflect further and in due course take a view as whether, and in what form, any further factual enquires should be carried out and whether a new private copying exception should be introduced.”

Mr Justice Green therefore proceeded to quash the regulations with prospective effect, but declined to decide whether the quashing order should have retrospective effect, saying instead that that this should be determined in the context of litigation between a specific copyright holder and an alleged infringer.

Conclusion

The result of the quashing order is that any copies of material that attract copyright which were made for private use before Section 28B was introduced, and those copies made after the date of the quashing order, will remain unlawful. The status of copies made while Section 28B was in force has not been decided.

This means that copying for private use, which is widespread by those who buy copyrighted works such as music tracks, is once again an infringement of copyright. This includes, for example, making a cloud storage backup or saving a copy of a song from a CD onto a computer or an MP3 player. Despite this, as has been the case in the past, we would not expect any significant pursuit of those individuals who copy for private use by organisations in the film and music industry.

Having said this, there may be situations where private copying could cause harm to specific copyright holders, who can now once again enforce their rights to prevent such copying. Smaller organisations, individual musicians, artists or photographers may, for example, feel that specific instances of private copying could cause them harm and they might wish to seek damages or an injunction. In this case, we may see smaller claims pursued against small scale copying in the Intellectual Property Enterprise Court (IPEC), which would allow more affordable copyright infringement actions.

Although the government has failed to allow copying for private use on this occasion, this is not likely to be the end of this issue and once the Secretary of State has reviewed the situation a fresh piece of legislation could be considered. Therefore the legal situation may well change again in the future.