Quashed - what's next for private copying in the UK?

Mark Owen, a partner in Taylor Wessing's trade mark, copyright and media group, believes the main practical effect of the Copyright and Rights in Performance (Personal Copies for Private Use) Regulations 2014 being quashed is that there is currently no exception to copyright infringement for private copying in England and Wales.

Original news

R (on the application of British Academy of Songwriters Composers and Authors and others) v Secretary of State for Business Innovation and Skills (The Incorporated Society of Musicians intervening) [2015] EWHC 2041 (Admin), [2015] All ER (D) 183 (Jul)

The present judgment concerned the consequences of the Administrative Court's previous decision that the adoption of the Copyright and Rights in Performances (Personal Copies for Private Use) Regulations 2014, SI 2014/2361 (Personal Copies for Private Use Regulations) had been unlawful (see [2015] EWHC 1723, [2015] All ER (D) 197 (Jun)). The court held that the Regulations would be quashed in their entirety, but only with prospective effect. Further, a reference would not be made at this time to the Court of Justice of the European Union (CJEU) because there was no present issue in dispute between the parties.

What led to this hearing?

The Personal Copies for Private Use Regulations were introduced on 26 August 2014. This implemented the InfoSoc Directive 2001/29/EC, art 5(2)(b) and introduced a private copying exception through the Copyright, Designs and Patents Act 1988, s 28B (CDPA 1988). However, when introducing the Personal Copies for Private Use Regulations, the UK government chose not to introduce a compensation scheme for situations where more than de minimis harm is caused to rights owners as a result of the introduction of the exception. The British Academy of Songwriters Composers and Authors, the Musicians' Union, and UK Music 2009 Limited, brought judicial review proceedings to challenge the Personal Copies for Private Use Regulations as a result of the absence of a compensation scheme.

In the earlier decision, the court had held that the Personal Copies for Private Use Regulations were unlawful. This was because during the consultation process leading up to the adoption of the Personal Copies for Private Use Regulations, the Secretary of State's conclusions on the 'harm' element were not justified by the evidence. In short, the Intellectual Property Office's research report was not sufficient, and the Secretary of State had ignored credible evidence which contradicted the conclusions and also failed to assess a potential category of harm. Despite finding the Personal Copies for Private Use Regulations to be unlawful, the court had left open the issue of the remedy to be granted, as well as a number of different issues.

What were the issues to be decided?

During the current judgment, the court had to decide:

• whether the Personal Copies for Private Use Regulations should be quashed
• if so, whether the Personal Copies for Private Use Regulations should be quashed with effect from the outset (ex tunc) or with prospective effect only (ex nunc)
• whether a reference should be made to the CJEU in relation to the meaning of the concept of 'harm'

What was the court's reasoning in quashing?

The court firstly noted that following the earlier decision, the Secretary of State had issued a statement in which he accepted that the Personal Copies for Private Use Regulations should now be quashed. Though there was an indication by the Secretary of State that he would review the procedure and introduce a new private use exception in the future, the court felt that it would be necessary to quash the Personal Copies for Private Use Regulations now given that the claimants had succeeded in their claim. The court considered that:

• the original judgment concerned private property rights which had been taken away from the rights holders so it would not be fair to deprive the rights holders of the remedy required whilst the Secretary of State rethought his options
• there was no certainty that the time the Secretary of State would take to come to a decision about the introduction of a new exception would be short, and
• an uncertainty in law would be created if the Personal Copies for Private Use Regulations were not quashed following a finding that they are unlawful--therefore, the court quashed the Personal Copies for Private Use Regulations with prospective effect only (ex nunc)

Due to the fact that the Personal Copies for Private Use Regulations introduced other provisions in addition to CDPA 1988, s 28B, such as, for example, analogous exceptions for performing rights in CDPA 1988, Sch 2, para 1B the court held that the Personal Copies for Private Use Regulations should be quashed in their entirety.

What is the practical effect of the Personal Copies for Private Use Regulations having been quashed?

The main practical effect of the Personal Copies for Private Use Regulations being quashed is that there currently is no exception to copyright infringement for private copying in England and Wales. For example, it is currently unlawful to copy lawfully downloaded music onto a CD intended for personal use. In practice, rights owners rarely issue proceedings against individuals who copy their work for such purposes, so the practical impact on end-users may be limited. The quashing of the Personal Copies for Private Use Regulations will also affect the plans of parties who were looking to develop new business models facilitated by the change in law.

The Secretary of State is currently considering all options and has expressed an intention to introduce a new private copying exception in the future. However, as of yet, there is no indication of timing.

What is the effect of the court declining to quash the Personal Copies for Private Use Regulations ex tunc?

As the court quashed the Personal Copies for Private Use Regulations with prospective effect only, they remain lawful for the period between the date in which they came into force (1 October 2014) and the date of the judgment (17 July 2015). Consequently, any personal copying carried out within this period would remain lawful. Rights owners would therefore have no claim against the persons who have copied their work for private use during this period.

What was the court's reasoning in declining to make a reference to the CJEU in relation to the meaning of the concept of 'harm' now?

As the Personal Copies for Private Use Regulations had been quashed, the Secretary of State is considering the options and there is no longer a real issue in dispute between the parties--the court deemed that the claimants no longer required any questions to be referred to the CJEU. However, as the Secretary of State may introduce a new exception in the future, at which point the question regarding 'harm' may need to be referred to the CJEU, the court granted the parties the right to apply for referral of the question in this litigation. The court decided that this was more cost efficient for both parties than having to commence new proceedings at some point in the future in order to have a question referred to the CJEU.

What should lawyers advise their clients in the wake of this judgment?

In the run-up to the introduction of the Personal Copies for Private Use Regulations, many rights holders were preparing to take account for the fact that the private copying exception would be introduced. At the same time, other parties were looking at the new business models which the change to the law may have enabled. Lawyers now need to advise clients to put such plans on hold. At present, it is not entirely clear whether the Secretary of State will actually introduce a new private copying exception in the future.

Interviewed by Kate Beaumont.

The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.

Mark would like to thank Andi Terziu, a paralegal in the firm's trade mark, copyright and media group, for his input throughout the interview.