One Year on, the UK’s Private Copying Exception is now Dead

December 2015

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Following the CJEU’s decision in the Reprobel case, it is perhaps not surprising that the UK Intellectual Property Office has announced that it is to abandon the UK’s private-copying exception which was introduced in October 2014, and which was effectively declared illegal by the High Court in July of this year, and so had to be withdrawn.
For the background to Mr Justice Green’s decision in July’s Judicial Review, please see this blog post. It now seems clear that the IPO were never going to find a workable scheme which met the criterion of ‘fair compensation’ for rights holders demanded by the EU InfoSoc Directive, while at the same time avoiding unpopular levies on consumables and hardware capable of being used to copy, in particular, music, computer games, ebooks and films, for personal use.
The Reprobel decision, although not specifically concerned with copying for private use, highlights just how complicated the levy system can become. Each EU member state has found its own way of tackling the issue, with no overall EU-wide harmonisation in prospect. It seems that the IPO and those representing rights owners could not find an existing model to achieve ‘fair compensation’.
So where does this leave ordinary users in the UK? Clearly some will have been unaware of the introduction of the exception last year, and possibly a larger minority will have been unaware of the rescinding of the exception, so they will no doubt continue to format shift their personally owned music and store tracks on the cloud in blissful ignorance that that is not legal in most cases. Then there is the grey area of the legality of copies made while the exception was in force. Those users who are aware of the changes face a difficult decision: whether to make copies for personal use in contravention of the law in the reasonably sure knowledge that they won’t get caught, or abide by the law and deny themselves a degree of sensible flexibility in their viewing and listening choices. One thing they will not do is is go out and buy a digital replacement such as a download, for a CD or DVD they already own.
The decision not go ahead with the private copying exception will also have implications for other parts of the music distribution industry. Operators of cloud services may face pressure to amend their terms of service to reflect the new status quo, and some streaming services may be forced to tighten up their procedures to prevent users from creating multiple copies of the same download. But what also seems clear is that the music industry has won a Pyrrhic victory since whether or not it is illegal, many users will continue to make private copies of their legally owned music etc, just as they used to do in the pre-digital age. No doubt the BPI and its members will complain that they will lose revenue through this behaviour but I think it is fair to say that they will, privately, continue with their old policy of not seeking to sue or prosecute anyone for personal format shifting. To do otherwise would undoubtedly alienate the buying public and strengthen the argument that the record labels are out of touch with what music fans want. It remains to be seen how organisations such as the Featured Artists Coalition and the collecting societies will react to this latest development. Arguably it was the artists who stood to gain from the imposition of a levy on consumables etc, but even they would no doubt acknowledge that a blanket system is neither fair to consumers, in that much copying is of non-copyright material, nor does it result in a fair distribution of the proceeds to the artists and authors of the works, since there is no way to monitor which actual works have been copied.
written by Andy Johnstone for the 1709 Copyright Blog  and and InfoSoc Directive here and

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