The statutory instrument introduced by the UK government in October 2014 to establish a ‘private copying exception’ under copyright law has, following a judicial review, been quashed. The relevant statutory instrument is SI2014/2361 (Statutory Instrument).
What is the ‘private copying exception’?
Under UK copyright law, the owner of the copyright in a work has the exclusive right to do certain acts in relation to the work protected by their copyright (e.g. copy the work and communicate the work to the public).
There are, however, certain statutory exceptions to this general position. One such exception, introduced by the Statutory Instrument, was to allow third parties to make personal copies of a work for their own private, non-commercial use.
Provided that the criteria set out in section 28B of the Copyright, Design and Patents Act 1988 (Section 28B) had been met, such ‘private copying’ would not infringe copyright.
Why has the Statutory Instrument been quashed?
The High Court was tasked with considering an application for the judicial review of the government’s decision to introduce Section 28B. Whilst the High Court delivered a lengthy decision following its judicial review, the key finding was that the government’s decision to adopt the Statutory Instrument was unlawful. This was based on the High Court deeming the process by which evidence was collected and evaluated during the consultation process to be defective.
What does this mean?
Based on the High Court’s decision to quash the Statutory Instrument, there is currently no statutory protection in relation to private copying of a third party’s work. This means that any private copying would infringe third party copyright.
However, this decision has prospective (not retrospective) effect only. This does leave the future of the private copying exception in the UK unclear and it is now with the UK government to decide next steps.
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