A Pause in Private Copying: Judicial Review Holds the UK Private Copying Exception to be Unlawful because there was no Evidence to Support the Decision not to Provide Compensation to Right Holders

摘要

The Personal Copies for Private Use exception to copyright infringement came into force in October 2014 to permit copying of lawfully acquired copyright works by individuals for their private use. The legislation was challenged by way of judicial review on the basis that it failed to provide "fair compensation" for copyright owners for the permitted copying by way of a levy on blank media or equipment used for recording as required by the Copyright Directive. In British Academy of Songwriters, Composers and Authors, Musicians' Union and UK Music 2009 Ltd v Secretary of State of Business, Innovation and Skills/ while the court upheld that the legislation as drafted was within the discretion provided under the Copyright Directive, ultimately it was unlawful as there was insufficient evidence to support the conclusion that the private copying permitted would cause zero or de minimis harm to the copyright owners, such that no compensation was needed. The legislation was quashed by the judge with agreement from the parties with prospective effect. The judge left open the issue of whether this was also retrospective. No reference has been made to the CJEU, although leave to apply for such a reference has been granted.