British Academy of Songwriters, Composers and Authors and Others v Secretary of State for Business, Innovation and Skills The Incorporated Society of Musicians (Intervener)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Green |
| Judgment Date | 17 July 2015 |
| Neutral Citation | [2015] EWHC 2041 (Admin) |
| Docket Number | Case No: CO/5444/2014 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 17 July 2015 |
[2015] EWHC 2041 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Green
Case No: CO/5444/2014
The Queen on the application of
and
Tom de la Mare QC and Tom Cleaver (instructed by Olswang) for the Claimants
Pushpinder Saini QC and Sarah Ford (instructed by Treasury Solicitor) for the Defendant
Hearing date: 3 rd July 2015
A. Introduction
In this ruling I address the issues which arise out of the Judgment handed down on 19 th June 2015 ( [2015] EWHC 1723 (Admin)) ("the Judgment"). In the Judgment I found that in principle the application for judicial review succeeded. This was upon the basis of one of the substantive grounds advanced albeit that it was a ground going to the heart of the decision adopted by the Secretary of State to introduce Section 28B CDPA 1988. In this ruling I shall use the same abbreviations and acronyms as I used in the Judgment.
The following issues now arise for determination:
i) Whether the Copyright and Rights in Performance (Personal Copies for Private Use) Regulations 2014 ( SI 2014/2361) ("the Regulations") made on 26 th August 2014 and coming into force on 1 st October 2014 should be quashed?
ii) Whether, if the Regulations are quashed, this is ex nunc or ex tunc?
iii) Whether a reference should be made to the Court of Justice of the European Union ("Court of Justice") in relation to the meaning of the concept of "harm"?
iv) Costs.
B. Whether the Regulations should be quashed?
In the Judgment I held that because of a defect in the process by which evidence was collected and evaluated during the consultation process leading up to the adoption of the Regulations which introduced Section 28B CDPA 1988 the decision to adopt those Regulations was unlawful: see Judgment Section I paragraphs [232] – [273]. The basis upon which I arrived at this conclusion was English common law, not the law of the EU. I made clear that my conclusion applied regardless of the fact that I decided a number of important points of law in favour of the Secretary of State but that there might be a case to be advanced that certain of these questions of law should be referred to the Court of Justice for determination. This was in particular in relation to the concept of "harm" considered in Issue II in the Judgment (see paragraphs [169] – [207]). I also made clear that I arrived at the conclusion that the consultation process was flawed regardless of the intensity of the judicial review process that I applied. In other words, I would have arrived at the same conclusion even had I accorded a very generous margin of appreciation to the Defendant.
I left open the issue of the remedy to be granted because it seemed to me, at that time, that in principle there were a number of possible alternative outcomes which might have led me to defer the consideration of a quashing Order until after a reference to the Court of Justice. Accordingly, I invited submission on appropriate next steps and remedies.
I have now received detailed and constructive submissions from the parties. The Secretary of State has accepted the position that the Regulations should be quashed. He states as follows:
"4. The Secretary of State welcomes the guidance which the Court has provided as to the correct approach to be adopted as a matter of law when considering the introduction of a private copying exception, and as to the scope and nature of the factual enquiries which are necessary. He will now take the opportunity to reflect further and in due course take a view as to whether, and in what form, any further factual enquiries should be carried out and whether a new private copying exception should be introduced. The Secretary of State has not decided on any specific course at this stage and wishes to take time to reflect before making any further decisions. He would not wish to create any uncertainty in the law by submitting that the Regulations remain in force while further policy decisions are made.
5. Given that the Secretary of State submits that a quashing order is appropriate at this stage, there is no necessity for a reference to the CJEU. As is made clear in the body of the Judgment, the Judge's conclusion leading to the ruling that the decision was unlawful did not depend on his conclusions on issues of EU law, in particular as to the meaning of "harm" (the issue identified by the Judge is a matter for a potential reference)".
The Claimants take the same position. They submit that the quashing of an Order or instrument should be the natural consequence of a finding that it was unlawfully brought about. In R (Edwards) v Environment Agency [2008] UKHL 22 Lord Hoffmann stated of the exercise of discretion:
"…the discretion must be exercised judicially and in most cases in which a decision has been found to be flawed, it would not be a proper exercise of the discretion to refuse to quash it".
Similarly, in R (ICI Plc) v Attorney General [1987] 1 CMLR 72 (CA) at paragraph [112] Lord Oliver stated:
"It must be wrong in principle, when a litigant has succeeded in making good his case and has done nothing to disentitle himself to relief, to deny him any remedy, unless, at any rate, there are extremely strong reasons in public policy for doing so".
In support of the proposition that the Regulations should be quashed the Claimants made the following additional points.
First, that the Judgment affects private property rights which, as matters stand, have been taken away from rightholders. Insofar as the Secretary of State has not articulated a present intent to reintroduce an exception and seeks time to think matters over, it would be neither right nor fair to rightholders to deprive them of the fruits of victory in this litigation. This is so notwithstanding that in practice in very many instances rightholders do not enforce their rights.
Secondly, upon the basis of the position presently adopted by the Secretary of State the time needed by him to reconsider and then act may be significant. This is not a case where the time elapsing prior to a definitive resolution of an issue can confidently be said to be short and as such it would not be appropriate to permit what is not, upon the basis of the Judgment, a lawful scheme to remain as valid on the statute books. This is especially so given that it is possible that following thought and reflection, the Secretary of State might adopt a middle course involving a copyright exception coupled to a modified compensation scheme. It would be wrong for inconsistent unlawful regulations to have remained extant pending the new ( ex hypothesi) lawful scheme.
Finally, it is submitted that in a dispute between purely private parties if the Regulations and Section 28B were left in place yet already held to be unlawful this would give rise to legal uncertainty.
It is clear that I should quash the Regulations. I make clear that this covers the entirety of the Regulations and all of the rights and obligations contained therein. The Judgment concerned the personal and private use exception in section 28B; but the Regulations for example also introduce analogous exceptions for performing rights in Schedule 2 paragraph 1B CDPA 1988. The Regulations are thus quashed.
C. Should the quashing Order be ex tunc or ex nunc?
The more difficult question arises as to whether I should quash the Regulations with prospective effect only ( ex nunc), or, whether I should also quash the Regulations with retrospective effect ( ex tunc).
It is the Claimants' position that I should quash the Regulations ex tunc and also that I should make a declaration reflecting this fact in the following terms:
"The Court hereby declares that the making of private copies of musical and other copyright works without consent, in the circumstances purportedly authorised by the Regulations, constitutes and has continued since 1 October 2014 to constitute an infringement of copyright".
The facts relevant to this issue are that on 1 st October 2014 Section 28B became effective. From there on, upon countless occasions, no doubt running into many millions, natural and legal persons performed acts of copying which were lawful under the law as it then stood. Evidence before the Court demonstrated that many people were never aware that private copying was even illegal. Other evidence indicated that many individuals refrained from copying for the very reason that they were aware that it was illegal. Indeed, the Claimants relied upon evidence (summarised in the Judgment paragraph [257]) to the effect that one of the most common reasons that people gave for not copying was that there was a current law against copying. It is therefore quite possible, and indeed probable, that very substantial numbers of persons commenced copying because they had become entitled in law to do so. They perfectly reasonably changed their conduct and relied upon the new law as a justification so to do. 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...
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