The High Court has ruled that the Copyright and Rights in Performances (Personal Copies for Private Use) Regulations 2014 (the “Regulations“) which created a copyright exception in the UK for private copying be quashed. This follows Mr Justice Green’s decision in June 2015 that the Government had acted unlawfully in not putting in place a compensation scheme for rightholders.
As previously discussed on this blog, Mr Justice Green found in his judgment handed down on 19 June 2015 that the evidence provided by the Government in support of the minimal amounts of harm for rightholders that would be caused by the implementation of the Regulations was inadequate. He therefore ruled that the implementation of the Regulations was unlawful as an adequate compensation scheme had not been provided to rightholders. At the end of his judgment, Mr Justice Green had invited submissions on next steps and remedies.
Having received detailed submission from the parties, Mr Justice Green revealed in his judgment of 17 July 2015 that the Secretary of State has now accepted that the Regulations be quashed to allow ‘the opportunity to reflect further and in due course take a view as to whether, and in what form, any further factual enquiries should be carried out and whether a new private copying exception should be introduced’. Mr Justice Green ruled that the Regulations should be quashed with prospective effect but did not make a ruling on quashing them with retrospective effect – this, it was ruled, was ‘appropriate to address in the circumstances of private law litigation between a specific rightholder and an alleged infringer’. He did remark, however, that the notion of restoring a cause of action against people who had copied for private use while the Regulations had been in force was ‘an unattractive proposition’.
The issue of whether any question needed to be referred to the Court of Justice of the European Union (the “Court of Justice“) was also raised, particularly as to the concept of ‘harm’ – a key sticking point in the ruling of 19 June 2015. Mr Justice Green felt that having quashed the Regulations it was not appropriate to make a reference to the Court of Justice at this stage because there was a “real risk” of sending a hypothetical reference to the Court who would decline to answer the question posed. However, not wanting to prohibit the Claimants from making a future reference if the Defendant’s on-going reconsideration “crystallised into a dispute between the parties which raised questions as to the meaning of “harm”, liberty was granted to apply for a reference in the final Order.