The private copying exception introduced last year has been declared unlawful by the High Court, in a legal challenge brought by three musicians’ groups.
In October 2014, the government introduced a private copying exception for consumers to allow them to copy material that they had already lawfully acquired for their own private and personal use without breaching copyright.
The British Academy of Songwriters, Composers and Authors (BASCA), the Musicians’ Union (MU) and UK Music challenged this on the basis it made no provision for “fair remuneration of right holders”, which they said they were entitled to under Art 5(2)(b) of the Copyright Directive.
Ruling in R (on the application of BASCA & Ors v Secretary of State for Business, Innovation and Skills [2015] EWHC 1723 (Admin), the court held that the government’s refusal to introduce a “fair remuneration scheme” was “simply not warranted or justified” by the evidence relied on, and was unlawful.
Deborah Annetts, chief executive of the Incorporated Society of Musicians (ISM), which intervened in the case, says: “This is an important decision which goes some way to support the rights of composers and performers.
“We urge the government to respond to this decision by introducing a fair remuneration scheme for musicians and other rightholders.”
However the court rejected the ISM’s arguments that the government was giving a substantial economic advantage of an estimated £258m over 10 years to tech firms by allowing private copying, and that this counted as “state-aid” under EU competition law and was therefore unlawful because the government failed to seek the European Commission’s approval before bringing in the Regulations.
