Government backs down on move to 'legalise' private copying

'Private copying exception' would require a 'compensation mechanism' (ie: tax) under EU law

The Intellectual Property Office (IPO) has confirmed that the government will not seek to re-legalise private copying in the UK, after the High Court in London in reversed a 2014 law "allowing" people to make personal copies of copyrighted works that they own.

It follows a judicial review earlier this year brought - predictably enough - by the music industry, which challenged the law on the grounds that it was introduced with no associated compensation mechanism for rights holders.

The law had been passed to reflect the reality of a world in which people will own CDs and MP3 recordings on multiple different devices. The government had argued that putting the law in line with the way in which people copy music and other copyright works that they own would not affect sales.

EU copyright laws stipulate that EU countries that introduce "private copying exceptions" into their national copyright laws must also introduce a "fair compensation" mechanism at the same time.

"The government is currently focusing its resources on the upcoming European copyright reforms, and does not intend to take further action on private copying at this time," a spokesperson for the IPO told law firm Pinsent Masons' Out-Law.com website.

At the time of the ruling, the government claimed that it was considering ways in which the law could be re-introduced in compliance with EU copyright laws. However, it has now confirmed that new proposals will not be introduced that would, effectively, legalise private copying.

The admission by the IPO follows a ruling at the Court of Justice of the EU on Hewlett-Packard versus Reprobel, Belgian's collective rights group. While the Court made a distinction between genuinely private copying, it also suggested rules by which rights holders could be remunerated involving both "lump sum remuneration" and "proportional remuneration" - rules that would no doubt be criticised in the UK for introducing convoluted bureaucracy.

According to Pinsent Masons' Out-law.com, "the lump-sum remuneration, which is paid to rights holders in advance of copying, cannot be 'calculated solely by reference to the speed at which the device concerned is capable of producing copies', the CJEU said.

"It said the proportional remuneration, which is recovered after copying takes place and is calculated 'by means of a unit price multiplied by the number of copies produced', cannot be varied to account for whether companies owing compensation have 'cooperated in the recovery of that remuneration'."

The judgment added that the "combined compensation model" must "not include mechanisms, in particular for reimbursement, which allow the complementary application of the criterion of actual harm suffered and the criterion of harm established as a lump sum in respect of different categories of users".

Pinsent Masons intellectual property law expert Iain Connor commented: "Many EU countries have a private copying exception in place and implement an associated financial levy on storage media and other technology to ensure rights holders are fairly compensated for private copying activities.

"Tech suppliers will welcome the fact that the UK government has no immediate plans to implement new private copying laws, but they should monitor how the copyright modernisation agenda develops within the EU."

The music industry has long sought both a clamp-down on private copying, as well as a compensating mechanism, often in the form of an extra tax on recording media that would ultimately be diverted to the major record labels and copyright owners. In the 1980s, for example, the industry lobbied for a tax on magnetic tapes.

Today, such a compensation mechanism might mean a levy on storage media, such as hard-disk drives and SSDs, as well as, perhaps, on cloud storage services.