Copying for private use: to be quashed with prospective or retrospective effect?

19 July 2015 by David Hart KC

British Academy of Songwriters, Composers and Authors and others, R(on the application of) v Secretary of State for Business, Innovation and Skills and another [2015] EWHC 1723 (Admin) – read original judgment and [2015] EWHC 2041 (Admin), 17 July 2015 read remedies judgment

On 19 June 2015, Green J ruled that an exception to copyright infringement for private use was unlawful, at common law, because of flaws in the consultation process which had preceded its enactment. See Rosalind English’s post here.

The judge left open for further argument what should be done about this unlawfulness.

The Secretary of State agreed that the offending statutory instrument should be quashed, and that he would re-consider whether a further private copying exception should be introduced.

But the parties disagreed about the date from when it should be quashed. Should it be prospective or retrospective? Or, in the Latin that lawyers still love, ex nunc (from now) or ex tunc (from then)? (Auto-correct so wanted those words to be “ex tune” – which would have been very appropriate, but wrong)

Quashing

The industry claimants wanted retrospective quashing, backdated to the date the offending regulations came into operation (1 October 2014). The SoS took a nuanced view, namely that it was wrong to rule on retrospection now.

The judge was not impressed with the music industry response.

As he pointed out, from October 1 2014, on “countless occasions, no doubt running into many millions”, people copied content, something which was lawful under the law as it then stood. Many people would have started copying because they had become entitled to do so, and relied upon the new law.

14…..The Claimants seek now to unravel the past and undermine the expectations of all those who believed that they were acting reasonably and lawfully or (irrespective of belief) now were so acting. They wish, in principle, to restore a cause of action against those same persons. This is an unattractive proposition, not the least because many of the Claimants’ own members take the view that (the hitherto unlawful) personal private copying actually benefitted the market for content which expanded in consequence; and because they recognise that personal private copying is a practical and reasonable reality, and because in further consequence there has been no practice of using the Courts to enjoin or seek other monetary relief against infringers.

The judge then discussed the question of whether the court had the power to limit the extent of its quashing order. You can see the issue. If the logic of the quashing order was that the law had been invalid from the start, on what basis could a court say consistently that it should only be quashed from a later date? Can the regulations be ordered to have legal effect for a while, and then, from the date of the judgement, that legal effect should come to an end?

The judge satisfied himself at [15]-[16] that he had the discretion to arrive at a date later than the original coming into force of the regulation, and quashed them prospectively. He was not prepared to rule on the further question of retrospection. As the SoS had pointed out, the people directly affected by the quashing order (private people copying between October 2014 and now) were not before the court. The real argument between a music rightholder and an alleged infringer (which would not be decided simply by retrospective quashing in any event) should be determined, if necessary, in private law litigation between them. Given the past, in which private right holders had not in fact brought claims against infringers, the judge thought that the point may be academic.

Reference of the “harm” question.

As Rosalind English explained in her last post, there was an issue as to whether the SoS had misunderstood the meaning of Information Directive 2001/29, when making the exception for private copying.

The judge thought that the issue properly fell within the discretion of the Member States and the SoS’s view was a lawful choice. However, this was an issue of great significance, and he did not consider that the answer was acte clair, beyond argument. In ordinary circumstances, this means that the matter would be referred to the CJEU for a preliminary ruling.

However, the judge had now quashed the regulations on entirely different grounds. If that were the end of the story, there would be no point in sending anything off to the Luxembourg court.

In the event, the judge decided that he would not make a reference at the moment, but would not preclude making a reference in future if a fresh dispute broke out in which the meaning of “harm” became relevant again. To that end, he gave liberty to apply.

Conclusion

Interesting that on the same day, two separate courts were wrestling with the timing of quashing orders. In the DRIPA case (see my post here), the question was whether an unlawful Act of Parliament should be quashed immediately or in future, to give Government enough time to replace it by a lawful one? Here, as we have seen, it was whether should the regulations should be quashed from the date of coming into force, or today.

The critical determinants appear to be

(i) the effect which the continuing law has had or will have on the actions of third parties;

(ii)  the strong public interest in the DRIPA case that a law should remain in place (in breach of EU law) pending its lawful replacement – contrast the lack of any powerful public interest in the present case, that private copying be able to continue (in breach of EU law) until the Government gets its act together after a lawful consultation process.

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