On 19 June 2015 Green J handed down judgment in R (British Academy of Songwriters, Composers and Authors & Ors) v Secretary of State for Business, Innovation and Skills  EWHC 1723 (Admin), which concerned a challenge to the lawfulness of an exception to copyright protection in respect of private copying. The exception permitted an individual who legitimately acquired content such as a music CD to make a copy of it for his own private use, for example to rip it to an MP3 player or store it in the cloud, without committing copyright infringement. This was conduct which most consumers thought either was already lawful or should be.
Under the EU Copyright Directive, Member States had a discretion to introduce a private copying exception provided that it was accompanied by ‘fair compensation’ to rightholders. No compensation would be payable where the harm to rightholders was minimal. Taking the view that the harm caused by a narrow private copying exception would be minimal or zero because there would be no loss of sales of duplicate works and the value to consumers of being able to make copies was already ‘priced in’ to the purchase price, the Secretary of State for Business, Innovation and Skills legislated to introduce a private copying exception without provision for compensation. This decision was the subject of judicial review by representatives of the music industry, namely the British Academy of Songwriters, Composers and Authors, the Musicians’ Union and UK Music, who sought to argue that they were entitled to a hypothetical licence fee in respect of each private copy which had been legitimised by the exception.
The Court found that the Secretary of State had adopted the correct approach to the meaning of “harm” and that the Secretary of State was entitled to rely on the ‘pricing-in’ principle. The Court also dismissed the Claimants’ argument that the Secretary of State had wrongly predetermined the outcome of his consultation and an argument on behalf of the Intervener, the Incorporated Society of Musicians, that the exception amounted to an unlawful State aid.
However, the Court concluded that the evidence relied upon to justify the conclusion that harm was minimal was inadequate and the Claimants’ challenge to the private copying exception therefore succeeded. Nevertheless, Green J indicated that if the Secretary of State were to reinvestigate the issue, then one possible outcome might be that the evidential gap would be plugged and a private copying exception would be lawful.
The judgment is here.
Nick Saunders and Sarah Ford appeared for the Secretary of State.