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New “Format Shifting” Exception under attack

By Chris J Holland, on 23 June 2015

Music industry bodies have challenged the legality of the new Private Copying Exception (CDPA, 28B). The British Academy of Songwriters, Composers and Authors (BASCA) along with the Musicians’ Union and UK Music have been seeking judicial review of the Government’s implementation of the exception in 2014. There is no direct relevance to Libraries or HE, but it may be of interest.

The basis of the challenge is that the Government failed to introduce a compensation scheme to make good any loss to the copyright owners following from the new exception, which enables consumers to copy for their own use any recorded music or other content which they have purchased, such as ripping a CD for your smart phone. Yes, of course you were doing that anyway – The new exception legitimises common practice!

In most EU countries there are levies on recording equipment – they work like a sales tax designed to compensate copyright owners for losses resulting from private copying. Levies are found to be unwieldy and bureaucratic in those countries, but they do provide substantial revenue for copyright owners via collecting societies.

There is an argument that the EU Copyright Directive requires compensation and the levies tick that box. 

The Government’s stance is that they have kept the new exception narrow so that harm to copyright owners will be non-existent or minimal – hence no compensation required.

The judgment in the High Court by Mr Justice Green has recently been issued and is available online here . This is a partial victory for the music industry bodies. The court agreed with the claimants on one significant point: The evidence examined by the Government to decide that damage to Copyright owners would be minimal was in fact inadequate. This is enough to make the Government’s action unlawful, but leaves it various options, such as:

  • Gather more persuasive evidence
  • Introduce levies
  • Refer questions to the CJEU
  • Repeal the exception (CDPA Section 28B)
  • Appeal to a higher court

Watch this space!

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