In drawing the “special attention of both Houses”to the Draft SI on Personal Copying for Private Use, Parliament’s Joint Committee on Statutory Instruments, in its Report published 2nd July (also see the 41st Report from the Secondary Legislation Scrutiny Committee), reflects the strength of the points made by the BCC in its letters to the Committees dated 31st March and 12th May.
The JCSI Report lays out the grounds on which the Draft SI is “reported for doubt as to vires”concluding that “there appears to be doubt as to whether it would be intra vires to introduce the proposed exception to copyright and rights in performance without also providing for a compensation scheme”. It further comments that “It also seems likely that it would be for the Government to satisfy a court that “fair compensation” should, in effect, mean “no compensation”.” and “there is a doubt about the Secretary of State’s power to make them in their present form.”
The BCC letters set out a number of concerns, which were intended to help ensure that the legislative changes provide both clarity and compatibility with the provisions of the EC Copyright Directive. These included the two points summarised here:-
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- Private Copying Exception: The legal grounds for Government to introduce an exception for private copying without fair compensation under Article 5(2b) Information Society Directive are not supported by recent CJEU decisions. Since our letter of 31 March 2014, the BCC position has been further supported by the CJEU judgement in case C 435/12 ACI Adam.
- Private Copying Exception: The legal grounds for Government to introduce an exception for private copying without fair compensation under Article 5(2b) Information Society Directive are not supported by recent CJEU decisions. Since our letter of 31 March 2014, the BCC position has been further supported by the CJEU judgement in case C 435/12 ACI Adam.
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- Use of Section 2(2) of the European Communities Act 1972:The Government’s argument that any measure, however significant its impact, can be implemented by SI if it is relevant to some treaty obligation appears to raise significant legal questions. The right of live public performance is not an incidental adjunct to the rights in the EU copyright acquis; it is a separate and important property right.