Last month we reported about a decision by the High Court of Justice that declared that a new law making it legal to make private copies of media you own contravened EU copyright law. As the decision was part of a judicial review procedure, and the judge asked the parties to submit comments so that he would be making a further decision. The comments are in, and the court has handed in a second decision (BASCA v Secretary of State  EWHC 2041) that will frame the final order. The results are very disappointing once again.
The Judge asked the parties to respond to the ruling, and the UK Government has caved in a manner that would make Theon Greyjoy look brave. When asked about whether the personal copying regulations should be quashed, the Secretary of State answered:
“4. The Secretary of State welcomes the guidance which the Court has provided as to the correct approach to be adopted as a matter of law when considering the introduction of a private copying exception, and as to the scope and nature of the factual enquiries which are necessary. He will now take the opportunity to reflect further and in due course take a view as to whether, and in what form, any further factual enquiries should be carried out and whether a new private copying exception should be introduced. The Secretary of State has not decided on any specific course at this stage and wishes to take time to reflect before making any further decisions. He would not wish to create any uncertainty in the law by submitting that the Regulations remain in force while further policy decisions are made.”
In other words, the government has decided that the regulations no longer apply, so for all intents and purposes it is now illegal to rip your CDs, or to make a digital recording of your vinyl records. There is one glimmer of hope, and it is that the government may still try to pass a new set of regulations that comply with the ruling. An important element of the earlier decision was that the UK regulations did not allow for a compensation regime such as it exists in Europe. It is now possible that the UK government will enact a levy system similar to that present in the Continent.
The judge had to make a couple of other considerations in the relatively short ruling. First he had to decide whether the quashing should be retroactive or only apply to future actions. Here Green J tries to balance the interest of the music industry versus the fact that maybe millions of people lawfully copied their own media wittingly or unwittingly. This part of the discussion once more shows how disconnected are the music industry and the judge when it comes to assessing the state of affairs in the music business. The parties seem to live in a world where everyone buys CDs and still has racks full of vinyl, and where millions continue to make digital copies of their works. It’s bizarre.
So Green J decided to make the effects of the law apply to the future, but will not rule out the retroactive application of the regulation, as he imagines that at some point a rightsholder may sue an individual user for making a private copy, and therefore he claims that it will be up to the party to prove that they were aware of the existence of the regulations. Here is a handy hint. Nobody gets sued for private copying. Nobody got sued when it was illegal, and nobody will get sued in the future.
The final consideration by the judge was whether to submit the case to the Court of Justice of the European Union, and he decided against it based on the advice of the parties. This is highly disappointing, as it would have given us an opportunity to examine the meaning of harm as present in the Copyright Directive. However, Green J leaves the door open to this happening in the future.
So what now?
The judge will be issuing an final decision in the shape of an order, it is very likely that the order will unequivocally quash the regulations, thus making it absolutely sure that private copying is illegal once more. It is hinted that the order will allow an appeal, and it will also allow the parties to take the question of harm to the CJEU.
I have to say that I am still baffled by the mind-blowing lack of awareness of the music industry that these two ruling show. Between the first and second decision we have had Swift-gate and the Apple Music launch, and still the courts have not realised that streaming is taking place.
Moreover, musicians are more astute when it comes to digital copies. Steve Albini put it best when he declared that copyright had expired:
“I think were seeing that the intellectual construct of copyright and intellectual property ownership is not realistic. Ideas once expressed become part of the common mentality. And music once expressed becomes part of the common environment. I think that the idea of intellectual property will naturally have to be modified to accommodate the way that people naturally exchange ideas and music and information. That old copyright model of the person who wrote something down owns it and anyone else who wants to use it or see it has to pay him, I think that model has expired. And people who are trying to defend that model are like people on horseback trying to fight against the automobile…I think the term piracy is absurd. Actually, piracy is people boarding a slip with violence and killing people and physically stealing material goods that are then no longer available to people who used to own them. I think equating somebody downloading something on his iPhone with that is preposterous.”
To prove the point, look at the picture above. That is a vinyl record of Albini’s own Shellac, the very excellent 1000 Hurts. It comes with a music CD, just to dispel all of the myths peddled in the BASCA decision about musicians losing out somehow because someone could create a digital copy of their music. I have ripped that CD by the way, will the music industry come after me?
No, because Albini could not give a damn (and this isn’t some kind of metaphor).