Business asked the Russian ministry of economic to consider the idea to reduce the rate of private copying levy in Russia. The private copying levy is to be imposed on the equipment capable of copying, but customers bus such equipment lesser and lesser.
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The current legal framework is silent on what constitutes ‘harm’. It merely refers to ‘harm’ as a valuable criterion in the calculation of the fair compensation (Recital 35 of Directive 2001/29/EC). The Court of Justice of the European Union, however, affirmed that the fair compensation must necessarily be calculated on the basis of the criterion of the ‘harm’ caused to authors of protected works by the introduction of the private copying exception. The Court did not clarify, however, what exactly should be understood under the notion of ‘harm’.
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The private copying exception and the reprography exception follow different approaches. Whereas the scope of the private copying exception is limited to reproductions that serve a specific purpose (“for private use”), the reprography exception covers reproductions on a specific medium (paper), using a specific method (“any kind of photographic technique”). Literally taken, reproductions on paper for private use are covered by both exceptions. The Directive does not regulate the relationship between the two exceptions.
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It can take several years to decide whether a given category of devices should be subject to a levy, and if so, what its level should be. Furthermore, the payment may reach rightholders only a long time after a given product is put on the market and the ‘harm’ has occurred.
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Levies should only be collected once in cross-border transactions, namely in the country of destination. Unfortunately, this is not always the case. Far too often, there are instances of double payments. Most Member States try to mitigate the problem by providing for systems that allow entities that have already paid the levy for a certain product in e.g. Member State A to be reimbursed upon the exportation of that product into Member State B.
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Some stakeholders have put forward ideas to replace the current hardware based levy systems with other forms of fair compensation. But, the alternatives that were put forward have not been sufficiently worked out in detail, and therefore do not justify the “phasing out” of hardware based levies in the immediate future. In particular, the link between the persons causing the harm and benefitting from the exception and the persons financing a system of fair compensation should not be severed.
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What proposes draft report (de) by Françoise Castex and why
Why
Cultural content plays a pivotal role in the digital economy. Digitisation is having a huge impact on the way in which cultural goods are being produced, distributed, marketed and consumed, and lower distribution costs and the appearance of new distribution channels can facilitate access to creative works and culture and improve the circulation of those works around the world. The implementation of exclusive rights does not guarantee all rightholders, and in particular performance artists, a fair and proportional share of revenue arising from the use of their works. Despite permanent access to online works, downloading, storage and private copying for offline use is continuing, a private copying levy system cannot therefore be replaced by a licencing system.
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Usually, a service provider acquires a licence from the rightholder that covers all copyright relevant acts involved in the provision of the service, including the reproduction of copyright protected content by the end user. Such licensing agreements also reflect the view and the expectations of the end user.
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Consumers enjoy increasing possibilities to make private copies (for instance of CDs) and to store them on multiple devices. The same applies as regards reprographic copies. The need to compensate for such acts of private copying will not vanish from one day to the next. Therefore, although the importance of levy systems will probably decline over time, they will not be simply abolished in the near future, as some stakeholders would prefer.
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Different points of view (de) on old issue
Angelika Niebler
Digital private copying has taken on major economic importance as a result of technological progress and the shift to the Internet and Cloud, and the existing system of private copying levies does not take sufficient account of developments in the digital age. There is currently no alternative approach in this area that would ensure appropriate remuneration for the rightholder and at the same time make private copying possible. A discussion therefore needs to be conducted in the long term on a more efficient and up-to-date approach that takes more account of technological progress.
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