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Mark Owen, a partner in Taylor Wessing's trade mark, copyright and media group, believes the main practical effect of the Copyright and Rights in Performance (Personal Copies for Private Use) Regulations 2014 being quashed is that there is currently no exception to copyright infringement for private copying in England and Wales.
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 2041 (Admin),  All ER (D) 183 (Jul)
The present judgment concerned the consequences of the Administrative Court's previous decision that the adoption of the Copyright and Rights in Performances (Personal Copies for Private Use) Regulations 2014, SI 2014/2361 (Personal Copies for Private Use Regulations) had been unlawful (see  EWHC 1723,  All ER (D) 197 (Jun)). The court held that the Regulations would be quashed in their entirety, but only with prospective effect. Further, a reference would not be made at this time to the Court of Justice of the European Union (CJEU) because there was no present issue in dispute between the parties.
The Personal Copies for Private Use Regulations were introduced on 26 August 2014. This implemented the InfoSoc Directive 2001/29/EC, art 5(2)(b) and introduced a private copying exception through the Copyright, Designs and Patents Act 1988, s 28B (CDPA 1988). However, when introducing the Personal Copies for Private Use Regulations, the UK government chose not to introduce a compensation scheme for situations where more than de minimis harm is caused to rights owners as a result of the introduction of the exception. The British Academy of Songwriters Composers and Authors, the Musicians' Union, and UK Music 2009 Limited, brought judicial review proceedings to challenge the Personal Copies for Private Use Regulations as a result of the absence of a compensation scheme.
In the earlier decision, the court had held that the Personal Copies for Private Use Regulations were unlawful. This was because during the consultation process leading up to the adoption of the Personal Copies for Private Use Regulations, the Secretary of State's conclusions on the 'harm' element were not justified by the evidence. In short, the Intellectual Property Office's research report was not sufficient, and the
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