Do you copy? UK's new format-shifting exception found illegal

You buy a CD and makes a copy for use on a portable device, or for storage in a cloud service. That's allowed isn't it? Well, it wasn't strictly legal in the UK until October 2014. That was when the UK introduced a new exception from copyright infringement for personal copies for an individual's private use. Now the new exception has been found illegal in court and hangs in the balance while the courts and the UK government decide what happens next.

Why the uncertainty?

European copyright law is partially harmonised. But there are areas of wide variation between countries, one of which is the list of allowed uses of content. The InfoSoc Directive offers a shopping list of exceptions that European countries can apply. These range from use for the purposes of public security or for legal proceedings to use in parody and caricature. The exception in question here is for copying by individuals for private, non-commercial purposes. This is allowed so long as copyright owners (musicians, composers, authors, etc) receive 'fair compensation'.

The new UK format-shifting exception... with no compensation scheme

The UK's introduction of a private format-shifting/storage exception in 2014 was relatively narrow in scope. It only allows copying for an individual's own personal use. (Some EU states have wider exceptions that allow for copying for family and friends and as gifts, but these are accompanied by compensation schemes such as levies on blank media or equipment.) This was done expressly to avoid the need to introduce a levy scheme. The UK government had carried out research and consultation to determine whether the harm to copyright owners would be more than minimal, and concluded that it would not. So it introduced the exception without a levy or compensation scheme for rightholders.

The music industry's challenge

The music industry was furious and promptly launched a legal challenge against the new rule. In their view the outcome favoured the technology industry, and particularly cloud service providers, over the creative industries. Now we learn that the challenge has succeeded - the exception is illegal (BASCA v Secretary of State for Business Innovation and Skills).

What happens next?

The judge analysed the introduction of the new law in detail. He felt that the evidence the UK government had relied on when deciding that there was no need for a compensation scheme did not stack up.

As a result, he said, the government now had several options. It could

  • gather new evidence in support of its position,
  • introduce a compensation scheme after all, or
  • get rid of the exception.

The judge has asked the parties for their proposals as to what kind of order he should make. He has also invited them to outline questions that could be referred up to the European court.

It's not over yet…

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