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As expected, the UK music industry is set to fight the private copy exemption added to British copyright law earlier this year through the courts.

On 1 October 2014, the Copyright and Rights in Performances (Personal Copies for Private Use) Regulations 2014 came into force. This introduced the UK’s private copying exception, as contemplated by Article 5(2)(b) of the Copyright Directive (2001/29/EC). At its heart, the purpose of the UK exception was said to be to legitimise format-shifting i.e. it allows consumers to copy music from their CDs onto their MP3 players (which, as you may well be thinking, people have been doing for years anyway, regardless of lawfulness) although it also covers cloud lockers and other types of personal copying.

The Government now faces judicial review over its implementation of the legislation. The claimants are the British Academy of Songwriters, Composers and Authors (BASCA), Musicians’ Union (MU) and cross industry group UK Music. Whilst they support the introduction of a private copying exception to keep up with the development of technology and practice, the government has introduced the exception without means of ‘fair compensation’ for musicians, composers and rightholders, as required by the Copyright Directive.

The lack of compensation sets the UK apart from other EU Member States, whose exceptions provide for fair compensation, usually in the form of a levy on blank media or devices used for copying.  As the UK Music press release puts it  “It is the compensatory element of a private copying exception that lies at the heart of EU law and underpins common respect for the songwriters, composers and musicians whose work is copied.”

Or as “The Register” chooses to put it “For reasons known only to itself, officials at the Intellectual Property Office (IPO) insisted that the UK government didn’t have to [introduce a levy], arguing the value of the music was “priced in”.

The judicial review will analyse the government’s decision-making leading to the introduction of an exception without the critical element of ‘fair compensation’, and ascertain whether this means the legislation is ultra vires due to incompatibility with EU law. The complainants’ intention is for the law to be re-made, to provide compensation for rightholders.

In a statement the three trade groups said: “The MU, BASCA and UK Music welcome the purpose of the new measures, namely to enable consumers to make a copy of their legally acquired music. However, this is a bad piece of legislation as it incorrectly implements the law by failing to include fair compensation for musicians, composers and rightsholders”.

“The private copying exception will damage the musician and composer community. It contravenes Article 5 (2) (b) of the [European] Copyright Directive which includes a requirement that where a member state provides for such a copyright exception – as the UK now has – it must also provide fair compensation for rights holders”.

“It is the compensatory element of a private copying exception that lies at the heart of EU law and underpins common respect for the songwriters, composers and musicians whose work is copied. The decision of the UK government not to provide fair compensation to songwriters, composers and musicians is in stark contrast to the vast majority of countries in Europe who have introduced private copying exceptions. The absence of a compensatory mechanism has led to the judicial review being applied for”.

BASCA CEO Vick Bain said: “We have sought judicial review because of the way the government made its decision not to protect the UK’s creative industries – in stark contrast to other countries that have introduced copyright exceptions. We fully support the right of the consumer to copy legally bought music for their own personal and private use, but there must be fair compensation for the creators of the music”.

UK Music CEO Jo Dipple said: “Licensing is the business model for the UK music industry’s success in the digital age. However, where the right to licence is removed rights holders should be compensated. Copyright enables people to earn a living out of their creativity and sustains jobs. The government has made a serious error with regards to private copying. The legislative framework must guarantee musicians and composers are fairly compensated”.

MU General Secretary John Smith said: “It is right that musicians should adapt to changing times – and they have. Most musicians now accept that their income will increasingly be made up of micro payments from collective licensing agreements and royalties from PPL or PRS. In order to survive on these multiple smaller amounts, however, performers need to be getting the money that they are owed from every possible revenue stream. Private copying should be one of these streams, as it is in most of Europe. The government has not adequately justified why they are bringing forward an exception without compensation. We believe there is strong evidence to suggest musicians will suffer harm under the proposal. This is why we are seeking a judicial review of their decision”.

From John Enser writing on the 1709 copyright blog http://www.the1709blog.blogspot.co.uk/2014/11/uk-private-copying-exception-faces.html