British Academy of Songwriters, Composers and Authors Musicians' Union & Ors, R (on the application of) v Secretary of State for Business, Innovation and Skills & Anor

Facts

The claimants — the British Academy of Songwriters, Composers and Authors, the Musicians' Union and UK Music 2009 Limited — sought judicial review of the Secretary of State for Business, Innovation and Skills's decision to introduce a private copying exception into UK copyright law by way of the Copyright and Rights in Performances (Personal Copies for Private Use) Regulations 2014 (SI 2014/2361), which inserted section 28B of the Copyright, Designs and Patents Act 1988 and an analogous exception for performing rights in paragraph 1B of Schedule 2 to the Copyright, Designs and Patents Act 1988. The Regulations were made on 26 August 2014 and came into force on 1 October 2014. The Incorporated Society of Musicians intervened. In a judgment handed down on 19 June 2015, [2015] EWHC 1723 (Admin), Green J held that the application succeeded in principle: the decision to adopt the Regulations was unlawful at common law because of a defect in the way evidence was gathered and evaluated during the consultation, a conclusion reached independently of EU law and irrespective of the intensity of review applied. The judge decided several other points of law in the Secretary of State's favour, including the meaning of "harm", and left open both the remedy and the possibility of a reference to the Court of Justice of the European Union, inviting submissions. This ruling determines those outstanding questions.