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Tuesday, 29 September 2015
A few weeks ago this blog reported on the latest Opinion of the European Copyright Society (ECS), this time regarding a case currently pending before the Court of Justice of the European Union (CJEU): HP Belgium v Reprobel, C-572/13.
This is a reference for a preliminary ruling from the Brussels Court of Appeal, seeking clarification as regards an evergreen topic in EU copyright, ie the fair compensation requirement in the reprography and private copying exceptions within Article 5(2)(a) and (b) of Directive 2001/29 (the InfoSoc Directive), respectively.
This case raises a number of issues, including whether a law (like the Belgian one) that allocates a portion of the fair compensation for reproductions pursuant to Article 5(2)(a) and (b) of the InfoSoc Directive directly to publishers is compatible with EU law.
Advocate General (AG) Cruz Villalon issued his Opinion [not yet available in English] last June, holding the view - among other things and relying upon the earlier CJEU decision in Amazon - that such law would not be compliant with the InfoSoc Directive. This would be because this piece of EU legislation does not allow Member States to allocate a portion of the fair compensation to the publishers if there is no obligation for the publishers to ensure that they pass on this part, directly or indirectly, to the authors.
In its analysis the ECS endorsed the AG Opinion on this point, and submitted that the CJEU should (re-)affirm the author principle, ie initial ownership of copyright for authors.
IFRRO, the International Federation of Reproduction Rights Organisation, has just released a document which is critical of the ECS Opinion. More specifically, IFRRO holds the view that:
"[T]he opinion expressed by the European Copyright Society regarding the publishers’ share is unsubstantiated. It conflicts with the international legal framework (including the Berne Convention, and especially the three-step-test laid down therein), and breaches longstanding legal and contractual arrangements between authors and publishers. Moreover, it is contrary to arrangements and traditions established and practised since the first establishment of collective rights management in the TI sector – the Reproduction Rights Organisations (RROs) – more than 40 years ago, regardless of the system under which they operate. The fundamental basis of collective rights management in the TI sector is that both authors and publishers are entitled to receive a portion of the remuneration / compensation. This is also consistent with the IFRRO Statutes, which require that RRO members represent both authors and publishers, and that these grant both categories of rightholders adequate representation on their governing bodies. In this vein, numerous IFRRO submissions to the European Commission on draft legislation, which led to the adoption of the EU Information Society Directive 2001/29 in 2001, uncontestedly, referred to ‘rightholder’ as a generic term for authors and publishers, who should both be entitled to a part of the remuneration / compensation when copies are made from an already published work."
Let's now wait and see with whom the CJEU agrees!