Private copying is illegal again in the UK

Illegal activity detected

A few months ago we reported on a couple of decisions by the England and Wales Hight Court declaring private copying illegal (here and here). Incredibly, before 2014 making a private copy of a legally-purchased work was illegal in the UK, which didn’t stop anyone ripping CDs or making digital copies of vinyl albums. So last year the government passed a regulation making private copying for personal use legal, but the British music industry sued the government through the process of judicial review, and they won when the High Court decided to ignore the wealth of evidence in favour of the regulations and quashed the statutory instrument.

The government had several options after the decision: they could have tried to appeal, they could have re-drafted the regulations with wording designed to comply with the ruling, or they could have done nothing and let private copying die. They decided to do the later. In a statement to Out-Law.com, a spokesperson for the Intellectual Property Office announced:

“The government is currently focussing its resources on the upcoming European copyright reforms, and does not intend to take further action on private copying at this time”.

This is highly disappointing for several reasons. Firstly, we are back to square one, where entire generations of people in the UK go about their lives breaking the law consistently. How does the music industry expect people to uphold such a stupid law? When copyright does not make sense, people will continue to ignore it and break it.

Secondly, this was a wasted opportunity to try to get a system in place that would bring copyright in line with consumer practices across the continent. The UK is the only country in Europe without a private copying exception. Why is it that many countries, including the maximalist heaven that is the USA, can live happily with private copying?

Thirdly, this move by the government move may have come too early. The Court of Justice of the European Union has recently ruled on the case of Hewlett-Packard Belgium v Reprobel (C‑572/1). In this case, the maker of printers and scanner equipment Hewlett-Packard sued Reprobel, the Belgian reprographic rights collecting society, over the copy compensation scheme in place in that country. As in many countries in Europe, Belgium has a system in which manufacturers of equipment capable of making copies have to pay a levy to collecting agencies as means of compensation. In 2004 Reprobel told HP that they needed to pay a staggering €49 EUR for each multi-function printer it sold, under the assumption that these devices would be used to make copies of works protected under copyright. Needless to say, HP considered the sum excessive, and conversations between the parties continued until 2010 without agreement. HP sued, Reprobel counter-sued, and the case made its way to the Court of Appeals, which referred several questions to the CJEU regarding the fair compensation scheme present in Belgian law. I won’t go into detail about that decision (read this excellent summary in the IPKat), but the CJEU made a very interesting and rational discussion about the nature of levies.

The idea behind the levy scheme assumes that users are going to make copies of works protected by copyright, and that rightsholders deserve a fair compensation for this action. Because it would be impossible to get such money directly from the user, the system has been created to allow for lump sums taken from the manufacturers of copying devices. Up until recently, there has been little consideration as to the factual evidence for the amount of damage that rightsholder suffer from the existence of copying devices. Now the CJEU has brought some rationality to the equation by looking at the actual damage. They say:

” By contrast, it cannot be inferred from the case-law […] that all persons to whom those devices are made available are to be deemed to take full advantage of the technical copying capacity of those devices, that capacity corresponding to the maximum number of copies which can technically be produced within a given period.
It is common ground that, as the different categories of acquirers or users do not have the same needs and are not subject to the same limits as those set out in Article 5(2)(b) of Directive 2001/29, they will use the technical capacity of a given device only so far as those needs or limits require.
In particular, the use of the technical capacity of reproduction devices differs depending on whether the person concerned is making copies for public or private use, and whether such copies are made for commercial or other ends.”

This is a really good discussion. For example, I own a multi-function printer, and I have never, not once, used it to make copies of a book. The CJEU then concludes:

“Remuneration the amount of which is set as a lump sum and which must be paid by persons who make devices available to natural and legal persons for the purpose of making copies must, in principle, take that difference into account, given that the assessment of the harm suffered is likely to lead to significantly different results for each of the situations mentioned in the preceding paragraph.”

It would have been interesting to see if the judicial review would have been different after Reprobel case. I for one see this as a missed opportunity (some other commentary about this subject in the 1709 blog).

Thankfully, we are in the process of a European-wide copyright reform arising from the Reda Report. So we will have to wait until the Commission publishes its copyright reform agenda. We can only hope that it may include a harmonisation agenda regarding private copying.

ETA: By the way, no, you will not end up in court if you back up your music collection in the UK, the law as it stood was never really enforced for private copying, which is the whole point of having a reform.