Government Facing Judicial Review Challenge Over Failure To Compensate in Private Copying Exception

The Musicians’ Union (MU), The British Academy of Songwriters, Composers and Authors (BASCA) and UK Music have launched an application for Judicial Review of the Government’s introduction of a private copying exception without providing fair compensation for songwriters, musicians and other rights holders within the creative sector. The MU, BASCA and UK Music welcome the purpose of the new measures, namely to enable consumers to make a copy of their legally acquired music.

However, this is a bad piece of legislation as it incorrectly implements the law by failing to include fair compensation for musicians, composers and rights holders. The private copying exception will damage the musician and composer community. It contravenes Article 5 (2) (b) of the Copyright Directive which includes a requirement that where a member state provides for such a copyright exception – as the UK now has – it must also provide fair compensation for rights holders. It is the compensatory element of a private copying exception that lies at the heart of EU law and underpins common respect for the songwriters, composers and musicians whose work is copied.

The decision of the UK Government not to provide fair compensation to songwriters, composers and musicians is in stark contrast to the vast majority of countries in Europe who have introduced private copying exceptions. The absence of a compensatory mechanism has led to the judicial review being applied for. The Judicial review process will involve the High Court examining the Government’s decision to ensure that it was made in a lawful way. It will test the manner in which the Government made its decision. Our intention is that a successful challenge will lead to the decision being re-made properly, with the legislation amended appropriately.

Commenting, Vick Bain, CEO of The British Academy of Songwriters, Composers and Authors (BASCA) said: “We have sought judicial review because of the way the government made its decision not to protect the UK’s creative industries – in stark contrast to other countries that have introduced copyright exceptions. We fully support the right of the consumer to copy legally bought music for their own personal and private use, but there must be fair compensation for the creators of the music. The exception also represents a transfer of value to the tech sector, by favouring international technology companies over our own creative industries, namely the musicians and composer communities. The new law has been sold as a measure which will bring clarity, yet if anything the inclusion of Cloud locker services will increase confusion amongst consumers.”

Jo Dipple, CEO of UK Music added: “Licensing is the business model for the UK music industry’s success in the digital age. However, where the right to licence is removed rights holders should be compensated. Copyright enables people to earn a living out of their creativity and sustains jobs. The Government has made a serious error with regards to private copying. The legislative framework must guarantee musicians and composers are fairly compensated.”

John Smith, MU General Secretary and President of the International Federation of Musicians (FIM) said: “The digital age has brought about real opportunity for the music industry and for creators, but in a lot of ways it has also made it more difficult for them to survive. Whereas previously musicians could look forward to a steady income stream from recorded music, the advent of downloading, mp3 players and streaming services mean that the money that performers get from sales of recorded music has reduced. And that’s without even mentioning illegal downloading. It is right that musicians should adapt to changing times – and they have. Most musicians now accept that their income will increasingly be made up of micro payments from collective licensing agreements and royalties from PPL or PRS. In order to survive on these multiple smaller amounts, however, performers need to be getting the money that they are owed from every possible revenue stream.

Private copying should be one of these streams, as it is in most of Europe. The Government has not adequately justified why they are bringing forward an exception without compensation. We believe there is strong evidence to suggest musicians will suffer harm under the proposal. This is why we are seeking a judicial review of their decision. This is surely wrong and the Government should reconsider this ill thought out legislation.”

For further information contact: Richard Elsen, Byfield Consultancy
Tel: 0207 092 3990
Mob: 07886 757307

Email: Richard@byfieldconsultancy.com

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