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Private copying exception abandoned by UK government

Following a decision by the Court of Justice of the European Union (CJEU) in the case of Hewlett Packard Belgium SPRL v Reprobel SCRL (Case C-572/13), the UK government has confirmed its earlier decision to abandon the UK's private copying exception to copyright infringement.

Private copying exception

The private copying exception, which was originally introduced in October 2014 legalised the making of personal copies of copyright works for an individual's private non-commercial use – see our update here. Such an exception is provided for within the EU Directive on Copyright (2001/29/EC), known as the Infosoc Directive, provided that member states ensure that copyright holders receive fair compensation for that copying. 

The UK government chose to introduce the private copying exception without an associated compensation mechanism on the basis that harm caused to rights holders would be minimal, which is allowed for within the Infosoc Directive. However, a judicial review challenge by various music industry bodies followed and the UK High Court subsequently ruled that the legislation on private copying was unlawful. The legislation was withdrawn and the private copying exception was then left for further review by the government. But following the decision in Reprobel in November, the government has now confirmed that it "does not intend to take further action on private copying at this time".

Reprobel decision

The Reprobel case concerned a dispute between the computer giant Hewlett-Packard (HP) and Reprobel, a Belgian collecting society dealing with reprographic rights. In 2004, Reprobel informed HP that a levy of €49.20 per multifunction printer sold in Belgium should be paid in accordance with Belgium's fair compensation scheme under the Infosoc Directive. After years of discussions regarding the levy without agreement, proceedings were commenced. Following appeal, the Court of Appeal of Brussels stayed the proceedings and sought guidance from the CJEU on the implementation of levy schemes and fair compensation. 

In its decision, the CJEU confirmed that a distinction must be drawn between the type of user who is reproducing a copyright work, for example, whether use is for private or commercial purposes. This is because the harm caused to rights holders will differ accordingly and will therefore effect the amount of compensation owed. 

When looking at the type of compensation mechanism, this can combine "lump sum remuneration" (paid in advance of copying) and "proportional remuneration" (paid after copying takes place) provided that the former is not calculated by reference to the speed at which a device produces copies and the latter is not varied to account for those owing compensation co-operating in the recovery of payments. But a combined compensation system must contain mechanisms for re-imbursement where overpayments of compensation are made. 

Impact on private and commercial users

The Reprobel decision highlights the complexity of levy schemes. It also shows why the UK government has been unable to find a practical solution to compensate rights holders while not unfairly imposing levies on consumers and/or technology companies for the sale or use of media/hardware that is capable of copying or being copied.

The position on private copying has now reverted to pre-October 2014. So consumers who, for example, copy a CD onto their MP3 player will once again be doing so in contravention of the law. In practice, rights holders have not enforced (and presumably will not begin enforcing now for the sake of not wishing to alienate consumers) this type of activity. But this will leave consumers with the decision as to whether or not they want to abide by the law. 

Technology companies on the other hand will probably welcome the government's decision to scrap the private copying exception and not to introduce a levy scheme. However, they should be sure their terms and conditions of service and/or procedures are compliant with the reversion in law so that users are prevented from making copies of copyrighted material, as mentioned in our update. EU copyright law is currently in the process of being reformed so we can expect further changes ahead.

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at December 2015. Specific advice should be sought for specific cases. For more information see our terms & conditions on www.TLTsolicitors.com

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