So you buy a music CD (legally, of course). Remember CDs? Those round, flat, silvery things that predated downloads… Anyway, you’ve bought a CD. You then decide that, for whatever reason, you’d like to make a copy of it. Maybe you want a copy at home and a copy in your car. This copy won’t be going to your friend or your mum or anyone else. No – it’s a copy just for you, to be used by you and only you for purely personal purposes. Great. Except that it’s not. At least, not any more.

Really?

Really. Earlier this year (June, to be more precise), the High Court quashed an exception to the prohibition against the copying of a copyrighted work. The exemption allowed such copying, provided it was for solely private use. At the time, the exception had been in force for all of about 8 months, having been introduced in October 2014.

What happened? Well, representatives from the UK music industry applied for judicial review of the Secretary of State’s decision to introduce the exception. These were:

• BASCA – the British Academy of Songwriters Composers and Authors;
• the Musicians’ Union – which represents over 30,000 musicians working in the UK; and
• UK Music 2009 Limited – a campaign and lobbying group.

The thing to note about judicial review is that it’s not an appeal against a decision. Rather, it’s a review of the basis on which the decision was made. Back to the point…

Why?

To explain the decision, we’re going to have to go into a little detail. But not too much, we promise.

It was possible to introduce the exception in the first place because of a particular article in a certain  EU Directive – Article 5(2)(b) of the EU Copyright Directive (2001/29), in case anyone’s wondering. Article 5(2)(b) provides that Member States can introduce a private use exception so long as – and this is the key point – there was a means for copyright holders to recover compensation if they, as a result of the exception, suffer significant harm (i.e. more than de minimis, or minimal, harm).

The private use exception introduced by the Secretary of State contained no such reference to a compensation scheme, because the government believed that such a scheme would be unpopular with consumers. And they managed to get around article 5(2)(b)’s compensation requirement by arguing that any harm caused by such an exception would be de minimis, i.e. so insignificant as to render any compensation unnecessary.

The Secretary of State’s argument was based on two grounds. Firstly, that, as regards harm in the form of lost duplicate sales, the fact that consumers were making private copies under the exception did not necessarily mean that, were the exception to be revoked, they would instead legitimately acquire duplicates of those works. In other words, having the exception did not necessarily result in a loss of duplicate sales. So those copyright holders would not suffer significant harm by virtue of the exception.

And the second reason? That the value of the compensation copyright holders would have received, if  such a compensation scheme were to be introduced, could instead be recovered by them in the form of a mark-up on the market price of the work.

But the claimants (those music industry reps we mentioned earlier) didn’t agree with this. They argued that the exception could lead to loss in revenue of around £58 million, and this was clearly not de minimis harm.

The High Court agreed with the claimants. But it also stated that the Secretary of State was entitled to not be in favour of a compensation scheme. What made the exception unlawful was that it didn’t appear that the Secretary of State had relied on evidence to show that any harm caused by it would be insignificant. The court wasn’t saying that there was no such evidence, just that the Secretary of State didn’t seem to have looked for any.

What happens now?

You might be wondering why we’re even asking this. Surely the answer is simply that it’s once again illegal to copy a copyrighted work for private use. And that’s correct… For now. The Secretary of State is evaluating the situation, and is likely considering whether the exception can be reintroduced without attracting judicial review. What’s a little more unclear is when. But no need to worry about that – we’ll keep an ear out.

In the meantime, those claimants have not indicated that they are suddenly going to be clamping down on private copying. Not that you needed to know that, of course.

But copying a copyrighted work, even if it’s just for private use, is only one way in which copyright can be undermined. Wondering what the other ways are? Wonder no more…

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