The High Court has quashed the UK’s private copying exception to copyright, following an application from the UK music industry to review the Government’s decision-making process. DACS welcomes the decision, having previously raised concerns about its impact on visual artists’ income and the need for fair compensation.
Why has the exception been overturned?
Introduced into UK law in October 2014, as part of
a raft of changes to copyright, the private copying exception allowed individuals to create personal copies of copyright-protected materials for their own private use, without needing permission or a licence from the copyright owner.
The UK music industry, represented by the British Academy of Songwriters, Composers and Authors (BASCA), the Musicians’ Union (MU) and UK Music, sought legal action against the Government over the exception, arguing that the Government’s failure to provide for fair compensation of copyright owners was a breach of European law. The High Court judge looked at whether the Government had based its decision to introduce the exception on adequate evidence, but found that it had not and therefore had acted unlawfully.
What was the outcome?
In a hearing in July 2015, the judge decided that the private copying exception must be quashed as a natural consequence of finding that it had been unlawfully brought about. The regulations that implemented the private copying exception are to have no effect going forward.
This decision was accepted by Sajid Javid, the Secretary of State for Business Innovation and Skills, who said that he will now “take a view as to whether, and in what form, any further factual enquiries should be carried out and whether a new private copying exception should be introduced”.
Sajid Javid also added that it would create uncertainty in the law if the private copying exception was to remain in force whilst further policy decisions are being made.
Read UK Music’s summary of the case
How does this impact visual artists?
As a representative and campaigner for visual artists’ rights in the UK, DACS was disappointed when the Government rejected our recommendation to provide compensation for artists suffering a loss of income as a result of the private copying exception.
In
our response to the consultation in 2013, we highlighted our concerns that the private copying exception had been introduced primarily to deal with the common practice of copying music and film into different formats. We were concerned that its potential impact on artists had not been considered.
As the exception effectively allowed for the creation of items featuring copyright-protected artworks, such as posters, postcards and t-shirts, we made it clear that it would undermine existing business streams supporting artists, such as merchandising. We therefore stressed in our response that fair compensation be provided for artists.
While we support the modernisation of copyright for the digital age, this should not be done at the expense of the artist. The decision to overturn the exception is therefore welcome news for artists. The Government will now be reconsidering its position and will decide if it will reintroduce the exception.
We will be monitoring the Government’s policy making process and will inform our members of any further decisions affecting their copyright.
Read more about the changes to UK copyright law introduced in 2014
Learn more about copyright and the law, visit our Knowledge Base
Image: Tate Liverpool merchandise featuring artwork by Andy Warhol, licensed by DACS. Photograph © DACS