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Industry seeks judicial review on private copy right

By | Published on Wednesday 26 November 2014

Maximising Music Rights

As expected, the UK music industry is set to fight the private copy exemption added to British copyright law earlier this year through the courts.

As much previously reported, a number of new exemptions were added to the UK copyright system earlier this year stemming from the 2011 Hargreaves Review. This means there are now more scenarios where people can make use of copyright material without the express permission of (and therefore without paying) the copyright owner.

This included the introduction of the so called private copy right. Previously anyone ripping tracks from CD to their PC and moving said ripped tracks onto their portable device of choice was, technically, liable for copyright infringement, even though the ripped tracks were for their personal use, and even though no rights owner would ever sue them. This put the UK out of kilter with the rest of Europe, where private copying is allowed.

Nobody in the music industry particularly opposes the private copy right, but in the rest of Europe a levy is charged – traditionally on blank cassettes and CDs, more recently on MP3 players and such like – which is paid back to the music community as compensation for the private copy right. But the UK private copy exemption has no such accompanying levy.

The music industry has opposed private copying without compensation from the outset, but failed to alter the new copyright exemption at the parliamentary stage. Mike Weatherley MP, usually a supporter of the music business in parliament, argued at The Great Escape earlier this year that the UK private copy exemption is much narrower than in most other European countries, so he didn’t believe the levy was necessary.

But the music rights community does not concur, and cross-industry trade body UK Music, working with the Musicians’ Union and British Academy Of Songwriters, Composers And Authors, is now launching a final bid to have the exemption amended by taking the new law to judicial review, at which judges will be asked to send the measures back to parliament on the basis they contravene European law.

In a statement this morning, the three trade groups said: “The MU, BASCA and UK Music welcome the purpose of the new measures, namely to enable consumers to make a copy of their legally acquired music. However, this is a bad piece of legislation as it incorrectly implements the law by failing to include fair compensation for musicians, composers and rightsholders”.

“The private copying exception will damage the musician and composer community. It contravenes Article 5 (2) (b) of the [European] Copyright Directive which includes a requirement that where a member state provides for such a copyright exception – as the UK now has – it must also provide fair compensation for rights holders”.

“It is the compensatory element of a private copying exception that lies at the heart of EU law and underpins common respect for the songwriters, composers and musicians whose work is copied. The decision of the UK government not to provide fair compensation to songwriters, composers and musicians is in stark contrast to the vast majority of countries in Europe who have introduced private copying exceptions. The absence of a compensatory mechanism has led to the judicial review being applied for”.

It is worth noting that the private copy levy has been somewhat controversial elsewhere in Europe since most people started copying songs to hard disks rather than cassettes or CDs. Because the question is, what do you apply the levy to as blank cassettes and CDRs, and standalone MP3 players for that matter, become a thing of the past?

Plenty of consumers oppose levies being added to PCs and smartphones on the basis they never personally transfer music to those devices. Or, if they do, the music they transfer originates with iTunes, the licence for which allows copies to be made onto multiple devices without relying on the private copy exemption. And, of course, as streaming rather than downloading becomes more mainstream, the concept of the private copy becomes redundant.

Which means that even if the music community secures a private copy levy through the courts, the kickback will be modest and short-term. But by fighting for the levy – even if the fight is led by artist and songwriter groups rather than the big bad labels and publishers – the music community risks, once again, being portrayed as the money-grabbing bad guys.

Not least because the vast majority of people gladly ripped every CD they bought without realising it was, technically, against the law. Therefore they will view the levy – however modest and hidden – as a new fee from the copyright owners to do what they have always done, rather than compensation for a new right they have been kindly gifted.

So, while there is seemingly a case under European law for the levy, the merits of chasing it are highly debatable. The easiest way to enforce copyright is to convince the majority that it’s worth voluntarily respecting. Being seen to screw ever more money out of consumers (which is how the tech lobby will spin this) damages the credibility of copyright and therefore makes it harder to enforce. Copyright at large, therefore, is damaged for relatively modest return.

But hey, I’ve been saying this ever since the private copy right without levy was first proposed in the 2006 Gowers Review and no one ever listens. So I’ll shut up and give the levy chasers their customary moment of quotage glory…

BASCA CEO Vick Bain: “We have sought judicial review because of the way the government made its decision not to protect the UK’s creative industries – in stark contrast to other countries that have introduced copyright exceptions. We fully support the right of the consumer to copy legally bought music for their own personal and private use, but there must be fair compensation for the creators of the music”.

UK Music CEO Jo Dipple: “Licensing is the business model for the UK music industry’s success in the digital age. However, where the right to licence is removed rights holders should be compensated. Copyright enables people to earn a living out of their creativity and sustains jobs. The government has made a serious error with regards to private copying. The legislative framework must guarantee musicians and composers are fairly compensated”.

MU General Secretary John Smith: “It is right that musicians should adapt to changing times – and they have. Most musicians now accept that their income will increasingly be made up of micro payments from collective licensing agreements and royalties from PPL or PRS. In order to survive on these multiple smaller amounts, however, performers need to be getting the money that they are owed from every possible revenue stream. Private copying should be one of these streams, as it is in most of Europe. The government has not adequately justified why they are bringing forward an exception without compensation. We believe there is strong evidence to suggest musicians will suffer harm under the proposal. This is why we are seeking a judicial review of their decision”.