Until last October, copying (or ‘ripping’) your music collection from your CDs to your iPod (other digital music players are available) in the UK was unlawful. Such ‘format shifting’ constituted making an unauthorised copy of a recording, and hence infringed any copyright which subsisted in it. The same applied to making copies of other works in which copyright may subsist (books, films etc). In practice, action was almost never taken as regards these infringements, and millions of people across the country continued breaking the law without realising it.
In Autumn 2014 the British Government brought this part of the law into the early part of the previous decade and added the new s28B to the Copyright, Designs and Patents Act 1988, allowing people who have acquired a permanent legal copy of copyrighted works (e.g. a legitimate copy of a book, CD etc) to make copies of it for their own private non-commercial use. Whilst this allowed individuals to format shift from copies they already owned, the exception was phrased narrowly, and did not extend to making copies for one’s family or friends, which would still constitute infringement.
As with most changes to copyright law, there is a balance to be struck between the rights of consumers to enjoy copyright works of which they have legitimately acquired copies, and rights holders’ continued interest in their works. Whilst the change provided a clear benefit to consumers, in amending the law in this way, the government restricted the ability of copyright owners to further commercialise their works without compensating them for their loss. As a result, the High Court has just struck down the amendment as unlawful, and copying your CDs to your mp3 player is illegal once more.
So what is the basis for this ruling? Well, copyright law in the EU is harmonised; however Member States are allowed to introduce certain exceptions to infringement (such as that introduced by the government) provided compensation is paid to rights holders where the harm they suffer is more than de minimis (minimal). When introducing the exception, the government concluded that the harm would be minimal, and so no compensation needed to be paid. In the snappily named R v Secretary of State for Business, Innovation and Skills ex parte (1) British Academy of Songwriters, Composers and Authors, (2) Musicians’ Union, (3) UK Music 2009 Limited, three bodies representing rights holders disagreed, and sought judicial review of the new law on the grounds that it was passed on the basis of an incorrect assessment of the harm it would do them and their clients. Mr. Justice Green agreed that the government had inadequately defined and assessed where the de minimis threshold was, and so found the new legislation unlawful.
What is interesting about this case is that it will not necessarily benefit any of the parties concerned. Many members of the public will once again be considered to be breaking the law by digitising CDs etc that they paid for, whilst at the same time rights holders may not in practice see any benefits either. It appears they brought the case in pursuit of compensation for their loss of the ability to charge people for further copies of works. However, as the law is so rarely enforced, they are unlikely to find themselves financially better off as an immediate result of this judgement. Their best hope is that the government decide to press ahead with the exception, and to implement a compensation scheme for rights holders. However, it may transpire that the government will either a) proceed with the exception having properly defined and assessed a de minimis threshold and concluded that the harm to rights holders still does not exceed it, or b) leave the law unamended, in which case the rights holders will have to pursue individual infringers if they want to be compensated, which they may be unwilling to do.
At the time of writing, the government’s next steps have yet to be announced, and we continue to watch the situation with interest.