Music industry organisations have won a high court battle over measures introduced by the government allowing people to lawfully copy CDs and other copyright material bought for their own private use.
A judge ruled that the government erred in law when it decided not to introduce a compensation scheme for songwriters, musicians and other rights holders who face losses as a result of their copyright being infringed.
The Department for Business, Innovation and Skills stated when introducing the measures that they would cause zero or insignificant harm, making compensation unnecessary.
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But Mr Justice Green, sitting in London, ruled that evidence relied on by the government did not justify the claim that the harm would be “de minimis”.
The changes came into force last October under the Copyright and Rights in Performances (Personal Copies for Private Use) Regulations 2014. Prior to 1 October it was unlawful, for example, to rip or copy the contents of a CD on to a laptop, smartphone or MP3 player for personal use, although the format-shifting activity had become commonplace.
The regulations introduced an exception into UK copyright law permitting the making of personal copies, as long as they were only for private use.
The legality of the regime was challenged in judicial review proceedings by the Musicians’ Union, UK Music, and the British Academy of Songwriters, Composers and Authors (Basca), which employed a legal team led by two QCs, Ian Mill and Tom de la Mare.
UK Music estimates that the regulations, without a compensation scheme, will result in loss of revenues for rights owners in the creative sector of £58m a year.
Jo Dipple, UK Music’s chief executive, said: “The high court agreed with us that the 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 the government gives us the standard of legislation our music deserves. We want to work with the government so this can be achieved.”
The judge stressed that the case had raised a range of legal issues of wide significance for UK and European Union law, most of which he had decided in the government’s favour. He said there were “complicated consequences” and he would be inviting further submissions on whether it would be appropriate to refer aspects of the case to the European court of justice.
During a three-day hearing in April, Mill told the judge that the law on private copying had been in an unsatisfactory state for decades. But the problem had been “massively exacerbated” by digital technology and the internet, and the quality and speed of reproduction and copying they allowed.
Mill said the music industry welcomed the government’s measures, “but objects to the lack of a fair compensation scheme to compensate rights owners for the harm caused – both historically and in the future – by private copying infringements of their rights”.
He argued that the UK, unlike the majority of European countries, had failed to provide appropriate compensation.
Pushpinder Saini, representing the Department for Business, Innovation and Skills, contended that no credible evidence had emerged during a lengthy consultation process to suggest that prejudice to rights holders “would be anything other than minimal”.
The measures adopted by the UK authorities were far more limited in scope than those adopted in other EU member states, Saini argued.
Under the regulations, only the individual who purchased the original copy of the work is legally allowed to copy it, not others, such as friends or family.
Saini said the industry case “boils down to an opportunistic attempt to obtain a financial benefit which, if the exception had never been introduced, they would never have received”.
But the judge disagreed with the government’s stance, saying it was “simply not justified” by the evidence it was relying on with regard to the compensation issue.
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