The BASCA Aftermath

Jane Lambert

In Judicial Review of the Copyright Exceptions: British Academy of Songwriters, Composers and Authors and Others v Secretary of State for Business Innovation and Skills 20 July 2015 I discussed the order by Mr Justice Green to quash The Copyright and Rights in Performances (Personal Copies forPrivate Use) Regulations 2014 SI 2014 No 2361 in  British Academy of Songwriters, Composers and Authors Musicians' Union and others, R (on the application of) v Secretary of State for Business, Innovation and Skills and Another (No 2) [2015] EWHC 2041 (Admin) (17 July 2015). A statement by the Intellectual Property Office on 20 July 2015 announced that HMG was considering the implications of the judgments and the available options.

In the penultimate paragraph of my case note I wrote:

"As Hargreaves has recommended that intellectual property policy should be evidence based it may be that applications of this kind will become more common in future. Having said that, the legislation that gave rise to this application was unusual in that it allowed member states a discretion as to whether to introduce the exemption at all but gave no guidance as to the nature or amount of, or the triggering factor for, the award of compensation."

Three days later Lady Neville-Rolfe, the minister with responsibility for intellectual proof revoked The Enterprise and Regulatory Reform Act 2013 (Commencement No. 8 and Saving Provisions) Order 2015 SI 2015 No 641 which would have implemented primary legislation repealing s,52 of the Copyright, Designs and Patents Act 1988 to take account of the decision of the Court of Justice of the European Union in Case C168/09 Flos SpA v Semeraro Casa e Famiglia SpA [2011] ECDR 8, [2011] RPC 10, [2011] EUECJ C-168/09 (see Flos putting us all through the Mill 17 Oct 2014). The statutory instrument revoking that commencement order was The Enterprise and Regulatory Reform Act 2013 (Commencement No. 8 and Saving Provisions) (Revocation) Order 2015 SI 2015 No 1558.

In a statement announcing the revocation order the government explained that it had received an application for judicial review following the making of that order. It added:

"Having considered the matter carefully, the Government has revoked the Commencement Order and will not continue with the current transitional arrangements."

The government will have to implement s.74 (2) of the Enterprise and Regulatory Reform Act 2013  now that it has been passed and it will have to make sure that the implementing provisions comply with the decision in FLOS. It has therefore indicted that it will launch a fresh consultation on revised transitional arrangements, including the date for implementing the repeal. I will let you know when that consultation is announced.

So the BACSA case has opened up a whole new area of IP law and it is one in which our chambers can claim specialist expertise. Should anyone wish to discuss this topic with me call me on 020 7404 5252 during office hours or use my message form.