The surname Green is identifiable with two huge artists within the music industry in the form of Cee-Lo Green and Professor Green. However, stars with number one singles are not the only “Green’s” shaping the future of the music industry, as a verdict handed down by Mr Justice Green in the administrative court in July has rendered using services like iTunes illegal.
“Don’t know much about history”
Before October 2014, under the Copyright Designs and Patents Act 1988 (CDPA) transferring a music file from one format to another, even for personal use, would have been considered an infringement of copyright without the copyright holder’s permission.
Consequently, if you burned an album into your iTunes library or made your very own mix CD for that commute to work, you would have been committing an infringement. However, on 1st October 2014, the Copyright and Rights in Performances (Personal Copies for Private Use) Regulations 2014 came into force giving effect to the new section 28B in the CDPA allowing a private copying exemption.
“I fought the law”
The legal issue
To the everyday user of iTunes, the largely welcomed introduction of the private copying exemption may have gone unnoticed, but the UK Music Industry weren’t dancing on the ceiling. The British Academy of Songwriters, Composers and Authors banded together alongside the Musician’s Union and UK Music 2009 Limited to take a stand against the Secretary of State for Business, Innovation and Skills. The quarry that the music industry have with the exemption is how it has been adopted by the government and consequently claimed judicial review.
The private copying exemption stems from the EU Directive 2001/29 that confers conferring power upon Member States to introduce exceptions to copyright. Article 5(2)(b) specifically allows for the exception for when a natural person copies on any medium for private use as long as there are no commercial ends to the private use. This exception would apply as long as there is no unreasonable harm to the rights holders who should receive fair compensation, as many other EU countries account for with a corresponding compensatory levy scheme.
However, it was successfully argued by the music industry that the Government had relied on its own conclusion in the consultation process to determine the extent of harm to rights holders. The Secretary of State’s decision, as Mr Justice Green ruled, ‘that the exception would lead to minimal or zero harm when the evidence relied upon did not support that conclusion.’ Consequently, the regulations that introduced the exception have been quashed and format copying reverted to its illicit status.
So far there haven’t been any subsequent reported cases of copyright holders suing for infringement of the everyday individual who privately copies a CD into their iTunes library. Indeed in the consultation process, the British Phonographic Industry, representative of the UK’s recorded music industry, indicated it was in their clients best interests not too pursue infringements of this type. However, ripping a CD onto your computer via programs like iTunes is an infringement of copyright unless you obtain the copyright holders permission.
Nevertheless, with the Secretary of State for Business taking time to build a bridge over this troubled water following the quashing of the regulations, change is in the air for UK copyright law so watch this space!
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Ryan has helped a vast number of businesses protect and control their intellectual property as well as drafting and advising on consumer and commercial contracts.
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