Copying material for private use may now be unlawful
Since October 2014 the amended section 28 of the Copyright, Designs and Patents Act 1988 permitted the making of personal copies of copyright works for private use.
However, a number of rights holders brought a judicial review action claiming primarily that the decision to introduce the private copying exception without a corresponding compensation scheme was flawed as the evidence relied upon was inadequate. Effectively, the exception was introduced in the UK without a fair compensation in light of the fact that damage to rights holders was deemed minimal or non-existent. The position differs from that of many other EU Member States where levies or surcharges on equipment are imposed to compensate rights holders for the loss of revenue as a result of the exception.
The High Court ruled in favour of copyright owners on the basis that the inferences drawn from the evidence relied on were not warranted but it did not strike out the exception, paving the way for a possible reference to the CJEU.
Although the decision only has prospective effect, so that copies made under the exception to date have not (so far) been ruled to be infringements, much remains to be seen. It is hard to predict whether the government will seek to reintroduce the exception with a compensation scheme (unlikely given its historic resistance to do so) and whether rights holders will now seek compensation from the government for copies made to date under the exception.
Either way, it is clear that change is needed. The clock is now turned back to the unsatisfactory position where private copying will no doubt continue, but will again infringe. The law has failed to keep up with consumers’ expectations and it will be interesting to see what action the government takes in light of this decision.