Copying material for private use: is it legal?

The UK Human Rights Blog reports on the very important copyright/administrative law case,  British Academy of Songwriters, Composers And Authors & Ors, R (On the Application Of) v Secretary of State for Business, Innovation And Skills [2015] EWHC 1723 (Admin) (19 June 2015)*, the work of a court and a judge rarely if ever before engaged on intellectual property issues. Green J held that the government was wrong to create a permitted act of private copying, by the Copyright and Rights in Performance (Personal Copies for Private Use) Regulations 2014 (SI 2014/2361) which inserted new section 28B into the increasingly-unrecognisable Copyright, Designs and Patents Act 1988. The problem lies in the directive that the government has to comply with in doing this, Directive 2001/29, popularly known as the Information Society directive, Art. 5 of which provides (in pertinent part):

2. Member States may provide for exceptions or limitations for the reproduction right provided for in Article 2 in the following cases:

…

(b) in respect of reproductions on any medium made by a natural person for private use and for ends that are neither directly nor indirectly commercial, on condition that the rightholders receive fair compensation which takes account of the application or non-application of technological measures referred to in Article 6 to the work or subject-matter concerned;

...




5. The exceptions and limitations provided for in paragraphs 1, 2, 3 and 4 shall only be applied in certain special cases which do not conflict with a normal exploitation of the work or other subject-matter and do not unreasonably prejudice the legitimate interests of the rightholder.

The government took the view that there was no need to provide for any compensation for rights holders, for the simple reason that there was no loss to compensate. The price had been set (and the rightholder remunerated) on the assumption that these private copies would be made. The permitted copying was of a copy which the individual already owned: it was nothing more than format-shifting.

The government had concluded that little or no harm would be caused to the rightholder. The judge took the view that there was not enough evidence for them to reach this conclusion. While he rejected the applicants' other contentions, on this point he found in their favour, and back to the drawing board goes the government.

Does this make sense? It seems to be predicated on the "normal exploitation" including selling new formats instead of allowing format-shifting. Of course, once the private copying snowball starts to roll there are sure to be copies being made for friends and family, but that doesn't seem to me to be reason to reject a limited private copying permitted act (or "exception" as the Directive will call it). The fact that such copying might take place is quite outside the scope of the permitted act, and doesn't affect the case for permitting what is permitted. Format-shifting should be a neutral event, and the copyright owner should not be allowed to think that his or her legitimate interests or the normal exploitation of the work extend to format-shifting. No-one in the real world imagines that it does, and the law must acknowledge this.

'via Blog this'
*You may also like to read the summary provided by the ICLR: [2015] WLR(D) 268. In many ways it is preferable to the 318-paragraph, 107-page, blockbuster which is Green J's judgment.