Jailed for using iTunes? ​IPO decision spells end for private copying exception… for now

IPhone mobile phone

The Intellectual Property Office (IPO) has in recent weeks confirmed that it will not be seeking to re-introduce a private copying exception into UK copyright law.

The IPO announcement follows a judicial review earlier this year of the Copyright and Rights in Performances (Personal Copies for Private Use) Regulations 2014 – the provision which introduced the private copying exception.

The law was originally introduced to reflect the needs of modern users, and the fact that many people chose to change the format of copyrighted media they own, for instance converting their CDs into MP3 files (so-called format shifting).

The judicial review, which was brought by the music industry, challenged the law on a number of grounds, but focused primarily on the lack of compensation mechanisms for rights holders. EU copyright laws specify that Member States that introduce private copying exceptions into their national copyright laws must also introduce a “fair compensation” mechanism at the same time.

The music industry also challenged the Secretary of State’s assumption that there would be no harm to rights holders by introducing the exception. The High Court held that the decision to introduce the exception was unlawful and the Secretary of State must find evidence to show there is minimal harm to rights holders, introduce a scheme to compensate rights holders or repeal the new exception.

When the judgment was handed down, the government stated that it would consider ways in which the exception could be re-introduced to comply with EU copyright laws. However, this latest announcement represents a change in this position.

Interestingly, the IPO’s announcement comes after a ruling of the Court of Justice in another case (HP v Reprobel), which has highlighted the difficulty of introducing a scheme to adequately compensate rights holders.

Is this the final word on private copying?

While in the short-term, the IPO’s announcement certainly deals a blow to the proponents of the private copying exception, it is unlikely to be the last time this issue is considered.

What is also unclear is the impact this decision will have on others. Among those who will be keen to watch this space closely are cloud computing service providers who may, for instance, face fresh pressure to change their terms of service to prevent users from creating several copies of copyrighted works. Those who facilitate format shifting, for example, by offering features that allow CDs to be converted into MP3 files, may also be affected.

Jeremy Smith is a trainee solicitor at Taylor Wessing