Musicians' success in the High Court

In October last year the Government introduced a private copying exception allowing consumers to copy, for their own private and personal use, copyright material they have lawfully acquired without putting themselves in breach of copyright law. However, the Government made no provision for ‘fair remuneration of right holders.’

Three Claimants – British Academy of Songwriters, Composers and Authors (BASCA), the Musicians’ Union (MU) and UK Music – challenged the Government’s decision not to establish a system of ‘fair remuneration for right holders’ by way of judicial review proceedings. The ISM intervened in the judicial review, supporting the Claimants’ position, and also putting forward new arguments in relation to illegal state aid.

The judicial review hearing took place in April and the Court’s judgment was handed down today.

The ISM’s additional state aid argument was not successful, however the Court agreed with the Claimants that the Government’s reasoning in relation to the refusal to introduce a ‘fair remuneration scheme’ was ‘simply not warranted or justified’ by the evidence that Government relied on and the Court declared the private copying exception unlawful. It is now likely that the private copying exception will be quashed.

Deborah Annetts, Chief Executive of the Incorporated Society of Musicians (ISM) said:

‘This is an important decision which goes some way to support the rights of composers and performers.’

‘The ISM is pleased that we were able to take part in this very significant judicial review. Whilst the ISM’s additional arguments around illegal state aid were not successful, we felt it was essential that they were given proper consideration at the hearing.’

‘We fully support the arguments put forward by the Claimants in the course of the judicial review and are therefore delighted that the Court has accepted their argument that the Government’s reasoning in support of introducing the private copying exception without making any provision for fair remuneration of right holders was simply not warranted or justified by the evidence relied on. This is an important decision which goes some way to support the rights of musicians.’

‘We urge the Government to respond to this decision by introducing a fair remuneration scheme for musicians and other rightholders.’

Background

The Government introduced an exception for private copying on 1st October 2014. This means that people could lawfully make copies of copyright material they had already lawfully acquired (for example by copying music files from a lawfully acquired CD onto their computer or MP3 player) provided the copy was for their own private and personal use.

This may seem like a common sense exception, but in the rest of Europe, when a ‘private copying exception’ has been introduced, creators and other right holder are also guaranteed 'fair remuneration' for the loss of their rights. The Claimants in the judicial review, and likewise the ISM, support the introduction of a private copying exception in the UK but on the condition that fair compensation be included.

The ISM’s Chief Executive and Head of Legal went to the High Court to support the music industry and the fight for performers and composers. The Claimants were arguing that European law requires that 'fair remuneration' be paid to right holders when a private copying exception is created (Article 5 (2) (b) of the Copyright Directive).

The ISM intervened in the case by adding a new argument – believing that by enacting these regulations (to allow private copying) the Government were giving a substantial economic advantage to tech firms. The tech firms have not been required to pay anything for this economic advantage which was, in effect, a free gift. The ISM believed that this counted as ‘state-aid’ under EU competition law and was therefore unlawful, because the Government failed to seek the European Commission's approval before bringing in the Regulations.

About the ISM

The ISM is the professional body for those working in the music profession. We promote music and look after the interests of professional musicians.

Our membership of approximately 7,000 covers both individual musicians and corporate bodies. Individual members include leading conductors, featured and non-featured artists, orchestral musicians working in all of the UK’s leading orchestras, composers, animateurs and arrangers.

Our corporate membership of over 160 music organisations includes Guildhall School of Music & Drama, Royal Academy of Music, Royal Northern College of Music, Birmingham Conservatoire, Royal Welsh College of Music and Drama, Trinity Laban Conservatoire of Music and Dance, Leeds College of Music, British Voice Association, Rhinegold Publishing, Avid, Yamaha UK, YCAT, the Composer’s Edition, (MPA), NMC Recordings, Jazz Services Ltd, Association of Independent Music, Classic FM, the Royal Philharmonic Society, Help Musicians UK, Association of British Orchestras (ABO), Music Sales Ltd, the Music Industries Association (MIA), and more.

For more information, contact [email protected]