Government faces legal challenge over new copyright provisions

The UK government is facing a judicial review challenge from BASCA and UK Music over its new private copying provisions

Anita Awbi
  • By Anita Awbi
  • 26 Nov 2014
  • min read
The Musicians’ Union (MU), British Academy of Songwriters, Composers and Authors (BASCA) and UK Music have launched an official challenge to the introduction of the private copying exceptions, on the basis that it does not provide fair compensation for songwriters, musicians and other rightsholders.

The Copyright and Rights in Performances (Personal Copies for Private Use) Regulations 2014, which came into force on 1 October, has granted consumers the legal right to copy CDs and DVDs onto personal computers, mobile devices and internet-based cloud locker services.

While the MU, BASCA and UK Music - backed by PRS for Music and PPL - welcome the underlying purpose of the new measures, they claim the exceptions incorrectly implement copyright law by failing to include fair compensation for musicians, composers and rightsholders.

The organisations said in a press release: ‘The private copying exception will damage the musician and composer community. It contravenes Article 5 (2) (b) of the EU’s 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 rightsholders.’

They believe it’s 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.

They also highlight that the UK government’s decision not to provide fair compensation to rightsholders is at odds with the vast majority of countries in Europe who have introduced private copying exceptions and included these compensatory measures.

During the judicial review process, the High Court will examine the government’s decision to ensure that it was made in a lawful way.

All three organisations bringing the review said they believed a successful challenge to the decision would lead to an amendment of the legislation.

Vick Bain, chief executive of BASCA, said: ‘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.

‘The exception also represents a transfer of value to the tech sector, by favouring international technology companies over our own creative industries, namely the musicians and composer communities. The new law has been sold as a measure which will bring clarity, yet if anything the inclusion of cloud locker services will increase confusion amongst consumers.’

Jo Dipple, UK Music chief executive, added: ‘Licensing is the business model for the UK music industry’s success in the digital age. However, where the right to licence is removed, rightsholders 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,’ she added.

John Smith, MU general secretary and president of the International Federation of Musicians, said: ‘The digital age has brought about real opportunity for the music industry and for creators, but in a lot of ways it has also made it more difficult for them to survive. Whereas previously musicians could look forward to a steady income stream from recorded music, the advent of downloading, mp3 players and streaming services mean that the money that performers get from sales of recorded music has reduced. And that’s without even mentioning illegal downloading.

‘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 for Music. 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. This is surely wrong and the Government should reconsider this ill thought out legislation.’

Read our news story about the introduction of the exceptions

For comprehensive government information on the new exemptions, please visit