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Private copying exception plans face possible legal action following parliamentary sign off

New rights to make private copies of copyrighted works, make free use of copyrighted material in works of parody and quote extracts from copyright protected books, audio and video content will be introduced into UK law from October.

However, a music industry body has suggested that it may take legal action against the planned new private copying exception after raising concern about the fact it is to be introduced without an accompanying levy system for compensating rights holders.

In the final stage in the parliamentary process, the House of Lords voted in support of the draft Copyright and Rights in Performances (Personal Copies for Private Use) Regulations and draft Copyright and Rights in Performances (Quotation and Parody) Regulations on Tuesday.

Under the proposed private copying exception, individuals in the UK would be given a new right to make a copy of copyrighted material they have lawfully and permanently acquired for their private use, provided it was not for commercial ends. Making a private copy of the material in these circumstances would not be an act of copyright infringement, although making a private copy of a computer program would still be prohibited under the plans.

There is no mechanism envisaged in the draft legislation for rights holders to be specifically compensated for the act of private copying. This prompted the Joint Committee on Statutory Instruments (JCSI), tasked with scrutinising the proposals, to warn parliamentarians that the rules may be deemed to be in breach of EU copyright laws as a result of the lack of 'fair compensation' mechanism. 

The JCSI said there is uncertainty about the legitimacy of the proposed new private copying regulations and that it may eventually fall to the EU's highest court, the Court of Justice of the EU (CJEU), to rule definitively on the issue.

However, during a debate in the House of Lords on the proposed private copying rules, Baroness Neville-Rolfe, the parliamentary under-secretary of state for business, defended the government's decision not to introduce a levy on private copying to compensate rights holders for that activity.

"The government do not believe that British consumers would tolerate private copying levies," she said. "They are inefficient, bureaucratic and unfair, and disadvantage people who pay for content. That is why the government’s exception is narrow in scope. It will not allow you to give or sell copies to others, and therefore will not lead to lost sales to copyright owners, making the need for a levy unnecessary."

"The government’s view is that EU law as it stands is sufficiently clear, and that EU member states have a wide margin of discretion in this area. In particular, member states do not need to provide compensation where an exception is likely to cause minimal or no harm, or where appropriate payment has already been made," Baroness Neville-Rolfe said. "The government do not deny that ultimately only the [CJEU] can rule definitively on the definition of minimal harm, and it has not done so to date. However, uncertainty … is not a justification for inaction, particularly when the evidence and reasonableness of a change is clear."

She said the government's position on the issue was supported by "the UK’s most eminent intellectual property professors", including former Court of Appeal judge Sir Robin Jacob.

However, other peers challenged the proposed private copying exception as it is worded. Lord Stevenson of Balmacara said research conducted by UK Music had shown musicians in the country could lose out on £58 million in revenues a year if the new exception was introduced.

In a statement, UK Music said it was considering its legal options.

"UK Music is disappointed that the government has ignored important warnings from parliament and industry about technical flaws in legislation to introduce a much needed exception to copyright for private copying," it said.

"MPs and peers have highlighted concerns about the damaging implications of its policy.  Industry has repeatedly offered to work with Government to amend the legislation to satisfy these concerns. Despite this, the government is proceeding with implementing a proposal which will have a negative effect on creative talent in the UK. The Musicians’ Union (MU) and The British Academy of Songwriters, Composers and Authors (BASCA) have expressed particular concern about the implications these exceptions will have on their members’ livelihoods," the statement said.

"We are disappointed that the private copying exception will be introduced without providing fair compensation for British songwriters, performers and other rights holders within the creative sector. A mechanism for fair compensation is a requirement of European law. In response we are considering our legal options," it added.

The new regulations are scheduled to come into force on 1 October. Other changes to UK rules on copyright exceptions were introduced earlier this year.

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