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Tuesday, 16 December 2014

What is in the Future for Private Copy Levies in the EU?

A report published in November by the French consumer organization UFC-Que Choisir denounced the high rate of the French private copy levies and compared them to the lower rates of the other Member States. Indeed, the  rates of the private copy levies are not harmonized in the European Union (EU), and some Member States do not even collect them or decided to get rid of such system. 
Collecting Tax is Fun! 

No Levies in Finland, Spain and in the UK
Finland decided last week to do away with private copying levies, as its Parliament voted on December 10 to replace the current private copy levy system, used since 1984, with a government fund designed to compensate artists for private copying of protected works. Swedish liberal MEP Cecilia Wikstrom is quoted in this Digital Europe press release as saying during a meeting in Brussels on December 11: “How would (the pop group) Abba suffer from me making a private copy of my CD for my car or so I can listen to it on my mp3 player while I’m jogging?”  She called the private copy levy system “absurd.”

Spain already has such a scheme, but this move, as reported in this very blog by Eleonora, will be reviewed by the Court of Justice of the European Union (CJEU), as the Spanish Supreme Court has referred two questions asking whether fair compensation for private copying acquired through annual public grants via the State budget is compliant with Article 5(2)(b) of the InfoSoc Directive. This article gives Member States the right to provide a private copy exception to reproductions rights if right holders receive a “fair compensation,” a concept which is, as stated by the CJEU in Padawan, “an autonomous concept of European Union law which must be interpreted uniformly in all the Member States that have introduced a private copying exception.”

 In the United Kingdom, The Copyright and Rights in Performances (Personal Copies for Private Use) Regulations 2014, which came into force on October 1st, 2014, does provide a personal private, non-commercial copying exception, but did not put in place a copyright levy system.  This move is being challenged by the British Academy of Songwriters, Composers and Authors (BASCA), Musicians' Union (MU), and UK Music.

Electronic Devices Included in Private Copy Levy in France and in The Netherlands

Back in France, the Commission Copie Privée (Private Copy Commission) is in charge of setting the rate of the private copy levies. According to Article L. 311-4 of the French Intellectual Property Code, this “compensation depends on the type of support and the duration or the recording capacity it allows.”
Paying a Private Copy Levy? MOI? 

The Commission is chaired by  a representative of the French State and is composed in half by persons designated by organizations representing the right holders, by a quarter of persons designated by manufacturers or importers of recording media  and by a quarter of persons designated by organizations representing consumers. But the Commission has been in turmoil for a while. UFC-Que Choisir left the Commission in the 2000’s, citing lack of transparency in the rates it is in charge of setting. Five of the six representatives of the manufactures/importers resigned from the Commission at the end of 2012.

But better days may be ahead for the Commission, as the Council of State, France’s highest administrative Court, recently validated, for the first time, the private copy levies rate adopted by the Commission Copie Privée  for digital tablets and for decoder-recording devices. There seems to be a current trend to include electronic devices in the private copy levy scheme.
Last week, the Dutch government agreed to pay €33,5 million in damages when it reached a settlement with the Dutch Foundation for Private Copies (Stichting de Thuiskopie). According to the press release issued by the Foundation, it had initiated this action against the Dutch State in 2009, claiming that the private copy levy was unlawful because it was only levied on CDs and DVDs, and not on other objects which may be used to make private home copies, such as MP3 players and hard disk recorders. Therefore, the revenues from the levies were too low to qualify as "fair compensation."

More developments in the private copy levies field are to be expected in 2015.

Image 1  courtesy of Flickr Users Big Dubya under a CC BY-NC-ND 2.0 license 
Image 2  courtesy of Flickr User   randomix under a CC BY-NC-ND 2.0 license 

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