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New “Format Shifting” Exception under attack

Chris JHolland23 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!

A Couple of things to watch out for in 2015

Chris JHolland9 January 2015

The EU initiative to review and update Copyright is still ongoing (although you could be forgiven for forgetting about it) and no doubt there will be proposals in 2015, following the previous consultation exercise. Apparently copyright features high up the agenda of Commissioner Oettinger . So there could be further changes to copyright legislation, following on the heels of the UK Government’s updating of the exceptions to copyright in 2014. The EU is committed to increased harmonisation of copyright in its member countries.

UK Music and various other bodies representing the music industry have launched a legal challenge to the Government’s implementation of an exception for Private Copying. The new exception permits you to format shift, for example by copying a music CD you have bought to use on your mobile device (essentially legalising what people were doing anyway). This is the new Section 28B of the Copyright, Designs and Patents Act 1988 (CDPA), “Personal copies for private use”.

The basis for the challenge is that although the EU Copyright Directive allows  member states to implement just such an exception, it also includes a requirement for “fair compensation” for the relevant copyright owners and in the UK there is no mechanism to deliver that. Watch this space!