The UK Government is facing a Judicial Review challenge over a failure to include compensation provisions in the recently introduced private copying exception to Copyright.

The Musicians Union (MU), British Academy of Songwriters, Composers and Authors (BASCA) and industry body UK Music have launched an application for Judicial Review of the UK Government’s introduction of a private copying exception. The provision was enacted to allow consumers to make copies of music they legitimately purchase. This exception was brought into force by the new copyright legislation on 1 October this year, but does not provide for fair compensation for songwriters, musicians and other rights holders within the creative sector.

Although MU, BASCA and UK Music support the purpose of the private copying exception legislation, they have criticised the fact that it fails to include provisions which would provide musicians, composers and rights holders with fair compensation to account for loss of sales. The decision of the UK Government to omit this provision is in stark contrast to the position adopted by other European countries which have introduced the copying exception.

It will be argued that the absence of a compensatory mechanism is contrary to Article 5 (2) (b) of the Copyright Directive which includes a requirement that where a Member State provides for such a copyright exception, it must also provide fair compensation for rights holders. The UK Music press release states that “it is the compensatory element of a private copying exception that lies at the heart of EU law and underpins common respect for the songwriters, composers and musicians whose work is copied.”

The Judicial Review process will involve the UK High Court examining the UK Government’s decision on the exception to check that it was made in a lawful manner. The industry bodies hope that the challenge will result in the legislation being amended.