Private Copying Exception is no more ... for now?

In his final judgment handed down yesterday Mr Justice Green confirmed his earlier finding that the consultation process which led up to Statutory Instrument 2014/2361 permitting an exception (the new section 28B) for making personal copies of copyright works, other than computer programs, for private use, was flawed. As a consequence the SI cannot stand and is therefore quashed. The Secretary of State (in this case, in effect, Baroness Neville-Rolfe, the Permanent Under Secretary of State for Business, Innovation and Skills) agreed that this was the best course of action and asked the court to make the order while her department thought about how to resolve the underlying issues. The Court decided against making a reference to the CJEU about the issue of 'harm' caused by the introduction of the secondary legislation, but left the door open if the claimants needed to follow up on this aspect of their overall claim at a later stage. This judgment follows-on from the much more extensive (318 paragraph) interim judgment issued in June of this year which was reported on by Ben here, and by Eleonora here.


The bulk of the final judgment was taken up with whether the order quashing the SI should apply from the date of the order, or be retrospective to the date the SI came into force. The court heard detailed argument on both courses of action, but decided that the order should only apply prospectively, or in legal terminology, ex hunc. This leaves a very large number (possibly in the millions, according to the court) of copies made between 16 October 2014 and 17 July 2015 which are legal anomalies. They are may be legal copies - Green J refused to determine their status - whereas copies made under identical circumstances, (ie of legally owned music or films etc for private purposes such as format shifting) made before 14 October 2014 or after 17 July 2015, would definitely be illegal. Considering that one of the reasons for bringing in the exception was the previous uncertainty about the law, because the recording industry had acknowledged that it would not seek to sue private individuals who made such copies, this latest development will merely add to the confusion.

Unfortunately articles such as this one on the BBC Newsbeat website over-simplify the issues. The private copying exception per se has not been declared ultra vires; indeed Article 5(2)(b) of the InfoSoc Directive 2001/29 continues to permit member states to adopt this exception. It is the faulty consultation process which has meant the law cannot be allowed to stand. In theory, following a correctly-conducted consultation, the Secretary of State could re-introduce exactly the same wording in a new SI and that would be legal. Only then would the issue of harm, raised by the claimants, need to be resurrected.

Of course if the British Association of Songwriters, Composers and Authors and others have their way, the new regulations should incorporate some method of compensating artists and authors whose works are subject to private copying. The creative industries generally favour a levy based on sales of recordable media and devices (blank CDs, DVDs, iPods, tablets, laptops, mobile phones, etc), while other options include a bulk payment from public funds, or indeed no compensation at all, as was the case prior to this judgment. The InfoSoc Directive merely requires member states to provide that "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". The exact meaning of this clause is some obscure and the Recitals don't really assist. The most relevant one is Recital 52 which says:

"(52) When implementing an exception or limitation for private copying in accordance with Article 5(2)(b), Member States should likewise promote the use of voluntary measures to accommodate achieving the objectives of such exception or limitation. If, within a reasonable period of time, no such voluntary measures to make reproduction for private use possible have been taken, Member States may take measures to enable beneficiaries of the exception or limitation concerned to benefit from it. Voluntary measures taken by rightholders, including agreements between rightholders and other parties concerned, as well as measures taken by Member States, do not prevent rightholders from using technological measures which are consistent with the exceptions or limitations on private copying in national law in accordance with Article 5(2)(b), taking account of the condition of fair compensation under that provision and the possible differentiation between various conditions of use in accordance with Article 5(5), such as controlling the number of reproductions. In order to prevent abuse of such measures, any technological measures applied in their implementation should enjoy legal protection."

Does it mean that rightholders are entitled to compensation in all circumstances of private copying, and that amount of compensation will be varied by the overall extent of the application/non-application of technological protection measures (TPMs), or is the compensation only required when TPMs have not been applied? Logically if TPMs prevent copying, then no compensation should be due in such cases, yet a levy on media and devices would be a blanket one and unrelated to the extent of the use of TPMs in a particular segment of the digital marketplace. For example TPMs are extensively employed in computer games, DVDs/BluRays of films and some eBook formats, but much less so for recorded music. The Directive seems to imply that only those specific works which do not employ TPMs should enjoy any compensation. This would involve the onerous task of remunerating not just specific artists and writers, but also just specific works where TPMs had not been applied. It seems clear why the artists, record companies and collecting societies favour a blanket levy approach.

So this is problem the IPO now faces. As Green J remarked, it seems likely that a replacement SI on the subject may be many months, if not years, away. Alternatively the whole issue could be quietly forgotten.

The CopyKat

In China the Sword Campaign - an annual nationwide special enforcement crackdown on online piracy and copyright infringement - will begin this month. The campaign is jointly operated by the National Copyright Administration of China (NCAC), Ministry of Industry and Information Technology (MIIT), Ministry of Public Security (MPS) and Cyberspace Administration of China (CAC). The campaign will focus on music, film and TV, online literature and mobile applications. More here (in Chinese).

And also in China, the IPO/UKTI IP newsletter tells us that  the State Administration of Press and Publications, Radio, Film, and Television (SAPPRFT) has published for public consultation a set of draft Measures for the Administration of the Distribution of Audiovisual Programs over the Internet and other Information Networks. Following earlier requirements for SAPPRFT supervision of overseas content, the draft Measures describe the application process and eligibility criteria for service providers to show audiovisual content on the Internet and mobile platforms. The deadline for comments on the draft Measures is June 30. More here (also in Chinese).

The European Commission has given the all clear for European collecting societies PRS, STIM and GEMA - which represent publishers and songwriters in, respectively, the UK, Sweden and Germany - to form a central hub to license and process royalties from multi-territory digital services.

PRS For Music CEO Robert Ashcroft: "This is a very significant day for online music licensing as our new joint venture is uniquely positioned to deal with the rapidly transforming online music market. What this clearance means is that we are now able to work even more effectively on behalf of songwriters, composers and their music publishers, while at the same time helping to develop the Digital Single Market across Europe" whilst STIM CEO Karsten Dyhrberg Nielsen said: "Today's competition clearance announcement is testament to the incredible work that has gone into the design of this new offering, which will provide a seamless service for both music rights holders and pan-European digital service providers. It's the result of years of productive collaboration between STIM, GEMA and PRS For Music to deliver a solution that will help the digital market grow". 

A federal appeals court has revived a copyright infringement lawsuit against Justin Bieber and Usher, marking the latest in a string of high-profile decisions attempting to clarify the nebulous difference between inspiration and copyright violation in the music industry. A three-judge panel of the 4th Circuit of the U.S. Court of Appeals unanimously ruled that there is sufficient reason to allow a jury to consider whether "Somebody to Love," a 2010 chart-topper from usher and Bieber, bears too much resemblance to an earlier song of the same name recorded by two Virginia musicians, Devin Copeland and Mareio Overton. "After listening to the Copeland song and the Bieber and Usher songs as wholes, we conclude that their choruses are similar enough and also significant enough that a reasonable jury could find the songs intrinsically similar," Judge Pamela Harris wrote for the court.

In London the High Court has ruled against the UK Government in a Judicial Review brought by the British Academy of Songwriters, Composers and Authors (BASCA), the Musicians’ Union (MU) and UK Music.  These three bodies challenged the Government’s decision to introduce a private copying exception into UK copyright law, arguing that it was unlawful because it failed to provide fair compensation to rightholders.  UK Music's press release goes on to say "BASCA, MU and UK Music had welcomed a change to UK law which enabled consumers to copy their legally-acquired music for personal and private use. However, ahead of the introduction of the private copying exception, they consistently alerted Government to the fact that in such circumstances significant harm is caused to rightholders and European law requires fair compensation to be paid.  The High Court agreed with the music industry and found that Government’s decision not to provide fair compensation was based on wholly inadequate evidence – and that Government’s decision was therefore unlawful."  Commenting on the outcome of the case, Jo Dipple, CEO UK Music emphasised the value of the music industry to the British economy and said: “The High Court agreed with us that Government acted unlawfully.  It is vitally important that fairness for songwriters, composers and performers is written into the law.  My members’ music defines this country.  It is only right that Government gives us the standard of legislation our music deserves. We want to work with Government so this can be achieved.” You can access the judgment here.   BASCA v Secretary of State for Innovation and Skills [2015] EWHC 1723 (Admin) and more from Eleonora on the IPKat here