Curiouser and curiouser

Ah, that curious little thing called copyright. Yes, we’re still talking about it. Earlier this week we discussed the hoo-ha (yes, hoo-ha) surrounding Anne Frank’s diary – namely, whether the copyright in that work ends at the end of this year, or whether it will instead continue for quite a few more years.

Back to the point. Copyright. More specifically, copyright infringement. Even more specifically, the private use exception to copyright infringement.

Now, we’re well aware that this isn’t the first time we’ve mentioned this exception, and how it’s been quashed. So you’re probably wondering what could we possibly still have to say about it. Quite a bit actually (it’s that kind of topic, you see). But we’ll keep it brief – Christmas spirit and all that.

In a (chest)nutshell

To summarise, an exception to the general prohibition against the copying of a copyrighted work was introduced by the Secretary of State last year. The exception legalised such copying as long as it was solely for private use, but there was no accompanying compensation scheme for affected right-holders.

This caused a bit of a stir in some circles, and earlier this year various representatives from the UK music industry applied for judicial review of the decision to introduce the exception. The High Court agreed with the claimants’ argument that the exception would cause significant harm (in the form of a considerable loss in revenue), and quashed the exception. However, it admitted that the exception was unlawful because the Secretary of State didn’t seem to have relied on evidence showing that any harm caused by the exception would be insignificant. But, it didn’t say that there wasn’t any.

So the Secretary of State was left to evaluate the situation, and to consider whether a private-use exception could be reintroduced without attracting judicial review.


A few weeks ago, the IPO (the Intellectual Property Office – the UK government body responsible for intellectual property) announced that, for the meantime at least, the government is not going to reintroduce the exception. It’s instead going to focus its “resources on the upcoming European copyright reforms, and does not intend to take further action on private copying at this time”.

The IPO’s announcement is great for some; for others, not so much. Whether the exception is reintroduced and, if so, the form in which it’s reintroduced will no doubt be influenced by the outcome of the anticipated reforms.

It’s worth noting that one of the aims of the upcoming reforms is to (further) ‘harmonise’ copyright law across the EU. And as several member states currently have a private-use exception (with an accompanying mechanism for compensation) in place, we may well see the reintroduction of a private-use copyright exception here in the UK. But until the proposals for reform are published, exactly how this harmonisation is going to be achieved will likely remain unclear. Which means that, once again, it’s a case of watching this space.

How surprising.

More on copyright

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