In the EU, authors must receive fair compensation' for private copying of their protected works by consumers in the 20 member states that authorise this exception to copyright. These states consequently have an "obligation to achieve a certain result," including at internal market level. This is the gist of an eagerly awaited ruling handed down by the EU Court of Justice, on 16 June(1). The decision adds input to the stormy debate over private copying, which the European Commission is striving to rekindle.
The dispute pitted Stichting de Thuiskopie, the Dutch body that collects the private copying levy, against Opus, a German company that sells reproduction material via the internet (DVDs, MP3s, printers, etc). Opus operates in the Netherlands via websites targeting the Dutch public.
Under the legislation of the Netherlands, the manufacturer or importer of the reproduction material must pay the levy. Opus, however, which processes orders in Germany and ships them to the Netherlands, refused to pay the levies. The Stichting therefore lodged a complaint claiming that Opus must be considered as the importer' and, as such, liable for payment of the private copying levy.
The Stichting was initially non-suited in the Netherlands. Before turning to the EU Court of Justice, the Supreme Court of the Netherlands noted that it was difficult to charge the levy to the buyer - as the importer - since the individual buyer "cannot in practice easily be identified".
The 2001 EU directive on copyright does not specify who should pay the fair compensation' due to the artist, states the court. It nevertheless refers to its judgement - in the Padawan case of October 2010 - that this fair compensation must be considered as recompense for the harm suffered by the author. The private buyer should therefore have to pay. However, considering the practical difficulty identifying the private buyer, the member states are at liberty to "establish a private copying levy for the purposes of financing fair compensation, chargeable not to the private persons concerned but to those who have the digital reproduction equipment, devices and media" and who "make that equipment available to private users or who provide copying services for them".
TOWARDS HARMONISATION?
The member states that have introduced this exception to private copying therefore have an "obligation to achieve a certain result" to the advantage of the author, sums up the court. "This result must be achieved even if it means charging the fair compensation to the exporter when it proves impossible to obtain payment from the importer," explains a Brussels-based lawyer specialised in intellectual property. According to this source, "charging the levy to exporters will make much more visible the wide range of compensation mechanisms existing in the single market". In fact, the states decide the amount of the levy and which material is taxed and there is a large variety of levies - which are passed on to buyers. This lawyer therefore concludes: "There is a real possibility that the compensation mechanism may no longer seem fair to consumers and may lose credibility. Greater harmonisation of private copying in the European Union could therefore gain legitimacy".
In its communication on intellectual property of 24 May (4207), the Commission announced its intention to organise a debate on European harmonisation of private copying systems. It opted for a "dialogue" between copyright societies that collect levies, on the one hand, and the technology industry and consumer organisations seeking a reform, on the other. So far, this dialogue has been very limited. This time, the EU executive will act through a mediator, to be appointed by the end of 2011. This person's task will be to work out solutions for defining more precisely the type of material concerned and a common "methodology" in the EU for calculating rates.
(1) Case C-462/09
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