BASCA, the Musicians' Union, and UK Music filed an application for judicial review against UK Government, arguing that lack of (fair) compensation would render the UK exception incompatible with EU law, in particular Article 5(2)(b) of the InfoSoc Directive.
Green J accepted the claimants' application, however he did not expressly rule on the actual compatibility of UK exception for personal copies for private use with EU law, and actually envisaged the possibility of a reference for a preliminary ruling to the Court of Justice of the European Union ('CJEU').
Last Friday Green J issued a follow-up ruling in this case, in which he addressed a number of issues, including whether:
i) The Regulations introducing the exception for personal copies for private use should be quashed and, if so, with what (temporal) effect; and
ii) A reference to the CJEU should be made as regards the notion of "harm" in Article 5(2(b) of the InfoSoc Directive.
|... copying ...|
In his earlier judgment Green J did not invalidate s28B CDPA, though he highlighted how failure on the side of the Government to provide adequate evidence to justify the lack of a fair compensation requirement could be "sufficient ... to result in the decision [to adopt s28B CDPA] being rendered unlawful".
This said, at that time the judge listed a number of possible alternative outcomes which might have led him to defer the consideration of a quashing the exception until after a CJEU reference.
Following the judgment, similarly to the claimants also the Secretary of State accepted the position that the Regulations should be quashed. Hence, in his follow-up judgment Green J invalidated "the entirety of the Regulations and all of the rights and obligations contained therein." [para 11]
The judge also addressed the temporal effect of the quashing of the Regulations, ie whether this should only have prospective effect (ex nunc), or also retrospective effect (ex tunc). The judge declined to make any ruling as to whether or not the Regulations should be void ex tunc. This was on consideration that a declaration to this effect would raise "potentially complex and far reaching issues which it is appropriate to address in the circumstances of private law litigation between a specific rightholder and an alleged infringer. It will be for a defendant in future proceedings to explore and raise this issue, including whether the effect of the fact that they relied at the time upon Section 28B creates some species of estoppel, legitimate expectation or fair use defence in private law and whether, if such exists, this goes to the cause of action or the remedy or both." [para 19]
No need for a CJEU reference (yet)
According to Green J [in line with the position of the Secretary of State: see para 23] a reference to the CJEU seeking clarification as regards the notion of "harm" in the InfoSoc Directive would not be prima facie needed to determine the outcome of the present case. As such, the CJEU might declare such a (hypothetical) reference inadmissible.
According to Green J the essence of the case disappeared after he quashed the Regulations. Although the judge refused to make any order for a CJEU reference now, he also announced that liberty to apply would be incorporated into the final order in this matter.
It is unclear what future awaits private copying in the UK, also because one of the reasons why Green J refused to make a reference to the CJEU was not to create "a forensic sword of Damocles to be dangled over the head of the Secretary of State" that would limit him from reconsidering the position as regards the private copying exception free from pressure. According to the judge, "[t]his is especially the case where [the Secretary of State] has a number of options to choose from. He is not bound to adopt an option which necessarily engages the issue of "harm" at all." [para 28]
So let's see what happens.
In any case it is worth noting that - even if the High Court of England and Wales on this occasion refrained from making a reference, courts in other Member States appear instead pretty keen on seeking CJEU guidance re interpretation of Article 5(2)(b) of the InfoSoc Directive. A number of cases is in fact currently pending before EU's highest judicature, including Reprobel [the Opinion of Advocate General Cruz Villalon is not yet available in English], Nokia Italia, and Egeda.