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Thursday, 27 June 2013

Copyright levies, computers and printers: court gives the final Wort

The Court of Justice this morning gave its ruling in Joined Cases C-457/11 to C-460/11 Verwertungsgesellschaft Wort (VG Wort) v Kyocera, Epson Deutschland GmbH, Xerox GmbH, Canon Deutschland GmbH and Fujitsu Technology Solutions GmbH, Hewlett-Packard GmbH v VG Wort -- as impressive a line-up of litigants as you could hope for. Not yet having had the luxury of enough time to read and absorb the deeper meaning of the court's judgment in full, this Kat takes the convenient route of pillaging the Curia website for its excellent press release, feeling quite justified in so doing since the judgment itself has not been posted at the time of writing this blogpost.  The Curia press release reads as follows:
The levy for the reproduction of protected works can be imposed on the sale of a printer or a computer

Member States enjoy a broad discretion to determine who must pay that levy, the purpose of which is to compensate authors for the reproduction of their work without their authorisation

According to EU law [Directive 2001/29 on the harmonisation of certain aspects of copyright and related rights in the information society -- the InfoSoc Directive, here], Member States should grant, in principle, to authors and the holders of related rights, the exclusive right to authorise or prohibit reproduction of their protected works or other subject matter. However, Member States may provide for exceptions or limitations to that exclusive right. Accordingly, they may permit, in particular (i) the making of private copies and (ii) reproductions on paper or any similar medium, using any kind of photographic technique or by some other process having similar effects. A Member State which avails itself of this option must, however, provide that the copyright holders receive ‘fair compensation’. That compensation is to compensate authors for the reproduction, without their authorisation, of their protected works.

The Bundesgerichtshof (Federal Court of Justice, Germany) is called on to give judgment in proceedings concerning the fair compensation owed for the reproduction of protected works made with the use of a chain of devices, including, in particular, a printer and a personal computer, principally where the two are linked together. In those proceedings, VG Wort, the authorised copyright collecting society representing authors and publishers of literary works in Germany, requests that Canon, Epson, Fujitsu, Hewlett-Packard, Kyocera and Xerox be ordered to provide information to it on the nature and quantity of printers that they have sold since 2001. In addition, VG Wort claims that Kyocera, Epson and Xerox should be ordered to pay it remuneration by way of a levy on personal computers, printers and/or plotters marketed in Germany between 2001 and 2007. In those circumstances, the Bundesgerichtshof has requested the Court of Justice to provide it with an interpretation of the relevant provisions of EU law.

In today’s judgment, the Court of Justice, in response, states that the concept of ‘reproductions on paper or any similar medium, effected by the use of any kind of photographic technique or by some other process having similar effects’ includes reproductions made using a printer or a personal computer where the two are linked together. In this case, it is open to the Member States to put in place a system according to which the fair compensation is paid by the persons in possession of a device contributing, in a non-autonomous manner, to that single reproduction process of the protected work or other subject-matter on the given medium in so far as those persons have the possibility to pass on the cost of the levy to their customers, provided that the overall amount of fair compensation owed as recompense for the harm suffered by the author at the end of that single process must not be substantially different from the fixed amount owed for the reproduction obtained through the use of one single device [in other words, there's no double-dipping: the notional compensation must be the same whether the copy is made via one machine or many].

Moreover, the Court finds that an act by which a rightholder may have authorised reproduction of his protected work or other subject-matter has no bearing on the fair compensation owed [Nothing new there. That principle pre-exists this ruling]. 
The Court states that, in addition, the non-application of the technological measures designed to prevent or restrict unauthorised reproduction cannot have the effect that no fair compensation is due for private copying [Any point-of-sale levy system would surely be unworkable if this were not so]. The application, by the rightholders, of such measures is voluntary. Nevertheless, it is open to the Member State concerned to make the actual level of compensation owed to rightholders dependent on whether or not such technological measures are applied, so that those rightholders are encouraged to make use of them and thereby voluntarily contribute to the proper application of the private copying exception.

Lastly, the Court holds that the relevant legislation ‒ a directive which came into force on 22 June 2001 and which the Member States had to transpose into national law by 22 December 2002 at the latest ‒ does not apply to the acts of using protected works or other subject-matter which took place before that date [presumably this doesn't necessarily invalidate any national laws to the same effect that pre-existed the Directive, though].
Advocate General Sharpston's Opinion here

STOP PRESS: as of 11.06 am, the decision of the CJEU has been posted here.  It's only 81 paragraphs long (as against 137 for the AG's Opinion) and is a good deal simpler to follow.

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