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Just how fair is the personal copying exception, implemented in the UK last year? Not very—the High Court has found that the government’s decision to not provide fair compensation, for example to cover sales lost when consumers take advantage of this exception, was based on inadequate evidence and is therefore unlawful. The case is R (on the application of British Academy of Songwriters Composers and Authors and others) v Secretary of State for Business Innovation and Skills (The Incorporated Society of Musicians intervening)  EWHC 1723 (Admin)
What is the background to the personal copying private use copyright exception?
The Copyright and Rights in Performances (Personal Copies for Private Use) Regulations 2014, SI 2014/2361 have introduced a new exception to copyright, implementing Directive 2001/29/EC, art 5(2)(b) (InfoSoc Directive). The personal copying for private use exception came into force on 1 October 2014 by the Copyright, Designs and Patents Act 1988, s 28B. As a result, any person who legitimately acquires content (music, film, books) can copy that work for his or her own private use without infringing copyright. It can be copied onto other formats or stored in the cloud provided it is for private, non-commercial use.
A condition attached to the right of member states to exercise the discretion under the InfoSoc Directive was that if the now permitted use caused more than de minimis harm to the copyright owner, for example, through sales lost when consumers take advantage of this exception, then compensation had to be payable. 21 out of the 28 EU member states who chose to introduce private copying exceptions, coupled the exception with schemes for compensation funded through levies. The UK did not.
What is the background to this application for judicial review?
In November 2014, the Musicians’ Union (MU), the British Academy of Songwriters, Composers and Authors (BASCA) and UK Music applied for a judicial review of the private copying exception on the basis that it does not include a mechanism for fairly compensating rights
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