Last month we reported on the case of BASCA v Secretary of State for Business and Innovation in which Green J held that the Government’s introduction of a UK “private copying” exception was unlawful. On 17 July 2015 Green J handed down a follow-up judgment quashing the regulations that introduced the private copying exception. This means that, going forward, the position in the UK is the same as it was before 1 October 2014; individuals will infringe UK copyright by making copies of copyright works they have bought e.g. a CD onto a PC for their own private use.
The case involved a judicial review of the Secretary of State’s decision to introduce an exception into UK copyright law that allowed individuals to make copies of copyright works they have bought e.g. a CD onto a PC for their own personal, non-commercial use without any accompanying compensation for rights holders (the “private copying exception”). Amongst other things BASCA challenged the Secretary of State’s assumption that there would be no harm to rights holders by introducing the exception and challenged the inferences drawn from the evidence collected.
On 15 June 2015 Green J held that the decision to introduce the exception was unlawful and the Secretary of State must find evidence to show there is minimal harm to rights holders, introduce a scheme to compensate rights holders or repeal the new exception. Having heard submissions from the parties Green J has held that regulations introducing the exceptions are quashed with prospective effect. He was not prepared to rule on whether the decision has retrospective effect. It will be for defendants in future litigation to raise as a defence the fact that they relied on the exception at the time.
Green J was persuaded to quash the regulations by the fact that the Secretary of State accepted that the regulations should be quashed pending his further consideration of whether an exception for private copying should in fact be introduced. Green J has however left open the possibility that a reference could be made to the European Court of Justice at some point in the future on the concept of “harm” caused to the rights holders if, for example, the Secretary of State decides to re-introduce a private copying exception and BASCA dispute that he has acted lawfully in doing so.
Is this the end of a UK private copying exception? We will have to wait and see whether the Secretary of State decides to pursue the possibility of an exception. For the moment, then, individuals will need to be careful not to infringe and rights holders will need to factor the decision into their UK piracy strategies.