In the recent case of BASCA and Others v The Secretary for State for Business, Innovation and Skills  EWHC 2041 Mr. Justice Green in the High Court in the UK invalidated the entirety of the Copyright and Rights in Performance (Personal Copies for Private Use) Regulations 2014 (S.I. 2014/2361) (“the Regulations”) and all of the rights and obligations contained therein.
The Regulations concerned the introduction into UK law of a private copying exception. The Regulations would have permitted consumers lawfully to copy CDs and other copyright protected material for their own private use.
BASCA, the Musicians’ Union and UK Music argued that the lack of provision for compensation for rightsholders in the Regulations rendered the Regulations incompatible with EU law and in particular Article 5(2)(b) of the InfoSoc Directive (the “Directive”).
Article 5(2)(b) of the Directive provides as follows:
2. Member States may provide for exceptions or limitations to the reproduction right provided for in Article 2 in the following cases:
(b) in respect of reproductions on any medium made by a natural person for private use and for ends that are neither directly nor indirectly commercial, on condition that the rightholders receive fair compensation which takes account of the application or non-application of technological measures referred to in Article 6 to the work or subject-matter concerned;
In an earlier decision, Mr. Justice Green held that the evidence relied upon by the defendant did not substantiate its claim that the exception would cause minimal harm to rightsholders and therefore that the lack of a fair compensation requirement was justified. Mr. Justice Green stated that “the conclusions and inferences which have been drawn from the evidence the Secretary of State has relied upon are simply not warranted or justified by that evidence”.
Mr. Justice Green noted that it is “possible following thought and reflection, the Secretary of State might adopt a middle course involving a copyright exception coupled to a modified compensation scheme”.
Article 5(2)(b) of the Directive was recently considered in 2013 by the Copyright Review Committee (the “Committee”). The Committee was established by the Minister for Jobs, Enterprise and Innovation and tasked with the job of, inter alia, examining the present national copyright legislation and identifying any areas that were perceived to create barriers to innovation.
Whilst the fair dealings exceptions currently under the Copyright and Related Rights Act 2000 (the “Act”) provide for an exception for private use, they are not as far reaching as the exception under Article 5(2)(b) of the Directive. In its Report, the Committee recommended a number of amendments to the Act to implement Article 5(2)(b).
It is of interest to note that the Committee observed in its Report that whilst there was wide support for the adoption of the exceptions in the Directive, rightsholders had argued that the exceptions should be subject to private copying levies.
In its Report, the Committee stated that they did not recommend any such private copying levies in the context of any private copying exceptions be implemented. In reaching this recommendation it referred to the Vitorino Report which it said “took the view that copies made by users for private use do not cause any harm that would require additional remuneration in the form of private copying levies”.
In addition, the wording of the exceptions outlined in the draft Bill contained in the Committee’s Report did not provide for compensation. There have been no further updates on whether the recommendations of the Report will be implemented and given legislative form.