Private Copying Exception – Now You See It, Now You Don’t!

Allen & Overy LLP

The High Court has quashed the Personal Copies for Private Use Regulations (the Regulations)2 which amended the Copyright, Designs and Patents Act 1988 (the Act) to introduce section 28B, with prospective effect. This follows its decision last month to uphold a judicial review challenging the Government’s introduction of this new statutory provision which had the effect of creating an exception to copyright based upon personal, private use. The High Court held that the Government’s decision, that the “harm” to copyright holders due to the legalisation of personal copying was de minimis and hence that no compensation was necessary, was based on inadequate evidence and flawed.

The High Court has however declined to make an order for a reference to the Court of Justice of the European Union (the CJEU) on the meaning of the concept of “harm” in the current litigation, but left the door open for a reference to be made in the future.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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