Portugal approves proposal to expand scope of private copying levy

Our friend Tito Rendas has emailed us with the following news from Portugal:

"The Portuguese Council of Ministers has recently approved a proposal to amend Portugal's Private Copying Law. The proposal updates the list of reproduction equipment, devices and media on which the levy is charged. The fee has been charged on CDs, DVDs and cassettes since 1998. If the Parliament passes the proposed amendment, MP3 players, external hard drives, memory cards and the like will be subject to the fee as well.

As you would expect, the proposal has been generating a great deal of controversy: on one side, the electronics sector threatens to pass the cost of the levy on to consumers; on the other side, the collecting societies claim that the proposed levy amounts are negligible.

Along with this amendment, the Portuguese Government approved a Strategic Plan to Fight the Infringement of Copyright and Related Rights. What is known so far is that the Government plans to launch awareness (brainwashing?) campaigns in schools and to create a special police unit for online copyright infringement. No plans to introduce a graduated response system have been announced, though".

Thanks so much Tito -- and thanks for sending us a link to the Portuguese government's official announcement of this proposal.

La Moncloa considers the private copying levy and State liability

From our good friend Fidel Porcuna (Bird & Bird, Madrid) comes the following update:

La Moncloa

"Readers might be interested in the recent news from La Moncloa, the seat of the Spanish Government. 

Every Friday a Cabinet meeting is held to decide on a variety of matters; its utterances are the last word on all such matters at an administrative level, although the legitimate interests of anyone who believes he is negatively affected can still be decided on the Courts. 

One of the issues discussed at a recent Cabinet meeting was the Spanish State's potential liability following amendment of the private copying compensation which caused the annulment of the copyright levy system as a whole. That law was passed by the Royal Decree of 30 December 2011, in force as of 1 January 2012, the new system having been enacted by Royal Decree 1657/2012 in force as of 8 December 2012. 

It was simple to calculate the effective harm caused to right holders by private copying over a period of 12 months, by applying a set of objective rules and subtracting the resulting sum from the State Budget. That sum was then given to the collecting societies along with strict rules for its distribution among right holders (phonograms, audiovisual works and books). It was established that, for 2012 the amount would be €5 million, the same for year 2013. 

A controversial element of the law was its transitional provisions: there would be no refunds for levies paid under the old system (despite Case C‑467/08, Padawan SL v Sociedad General de Autores y Editores de España (SGAE)- see earlier Kat posts here and here), and the levies accrued up to 1 January would still be payable to the collecting societies. These issues were discussed in a previous entry in The 1709 Blog here. The situation became even more uncertain when the Supreme Court also annulled some minor legislative provisions (the implementing regulations concerning the amounts payable for each digital item) that were in force prior to the suppression of the copyright levy, on the grounds that the passing process was not correctly applied. In particular, said the Court, the Government passed it without the perceptive report of the Consejo de Estado, sitting as a State consultative board. That made definitive the fact that users of digital devices had paid copyright levies according to an invalid regulation from 2008 to 2011. The situation was then delicate, as the consequences were unpredictable (one dared to draft speculative scenarios). The only certain fact was that the collecting societies announced that they were taking legal action against the Government to recover unpaid levies as a consequence of the suppression of the digital levy, and to arm themselves vis-á-vis potential actions from they electronics sector. They indeed did launch proceedings, seeking damages of up to €105.2 million.

The recent Cabinet meeting maintained that the modification of the private copy compensation system created no liability for the Government (the Cabinet can decide on this according to the procedural rules of the State's liability claims, where these are examined by the corresponding Ministry or, as the case here, by the Cabinet).  The reasons for dismissing the collecting societies' claims are twofold: the Government believes the new system is in accordance with EU law and with the CJEU's doctrine by which the Member Estates are entitled to modify their copyright levy system (in particular, the structure, financial models, gathering and quantity), as long as that is based on the effective harm. On the other hand, there is not real so much as hypothetical harm to authors -- which is therefore not subject to damages according to the particulars of the law on the State's liability. Should eventually the effective harm's value turn out to be more than €5 million, the State Budget has resources to increase the provisional compensation set as €5 million".  

Real Decreto 1657/2012: a collector's piece for Spanish copyright enthusiasts

From the 1709 Blog's helpful Spanish friend Fidel Porcuna, a Senior Associate in Bird & Bird's Madrid office, comes this update on the private copying levy in Spain:

"On Sunday 8 December the definitive royal decree on private copying (Real Decreto 1657/2012) entered into force. An earlier public consultation on the draft proposal ended on 5 November. The essential points of the new proposal remain the same: there will be no collecting obligations for the industry and compensation will be met from the State Budget instead. This compensation will be calculated according to the harm caused to copyright owners in result of copying by individuals for private use, but not for professional or business use (after the CJEU so established in its Padawan ruling on the private copy compensation complying with the spirit of Directive 2001/29).

So what has changed from the proposal? A few important things, as follows:

(a) the right for reimbursement of copyright levies "unduly paid", presumably those in relation to digital devices directed to professional or business use;

(b) removal of the six month grace period for paying the due copyright levies that were accrued according to the now old law before 1 January 2012. Debtors seem to have the obligation to pay from the day the Royal Decree enters into force, with no extension on a timely basis.

(c) an express inclusion of books and works assimilated to books, meaning (awkwardly) periodical publications with cultural, scientific or technical content provided they are published under the same title, with a minimum periodicity of one per month and maximum one per semester, and they have at least, not 47, 28 or 19 but 48 pages;

(d) the express exclusion of electronic databases and software;

(e) an express indication that a private copy is one to which the user has legal access. The Royal Decree does not follow a more restrictive position by which the private copy shall only be the copy of the original work (as it was stated in the proposal draft of a new Spanish Copyright Act leaked some time ago to the press); 

(f) the exclusion from the concept of 'private copy' of copies made in establishments whose business is the reproduction on demand, the copies for lucrative or collective use;

(g) the increase of the percentage the collective societies are obliged to preserve for promotion, assistance and education programs;

(h)  prohibition upon the use of compensation to increase salaries, bonus or other pecuniary benefits of their personnel;

(i) the express indication that control measures can be adopted by the Government to evaluate transparency and efficiency of the distribution of the compensation by collecting societies;

In addition, the Supreme Court rejected on 7 December -- the same day the Royal Decree was advertised in the Official Gazette-- the Spanish collecting societies' and the Attorney General's appeal against a 2008 Royal Decree developing the equitable compensation rules establishing the specific levies to be paid for digital devices for year 2009. The Appellate Court annulled this regulation because the Government passed it without the perceptive report of the Consejo de Estado, sitting as a State consultative board, and financial and economic reports. This makes definitive the fact that users of digital devices paid copyright levies according to an invalid regulation from 2008 to 2011. 

The consequences of this are still unknown, but probably collecting societies will press for the State's responsibility. If that happens, a strange situation will occur: (i) user pays undue copyright levy to collecting society, (b) user claims reimbursement of undue copyright levy from collecting society, (c) collecting society claims to the State damages, and (d) State (i.e. all users) pays damages to collecting society".

Hardware providers sue Dutch government over private copying levy hike

Further to recent changes to private copying compensation in Spain, change may also be afoot in the Netherlands.

What do you mean we've moved on?

The private levy system in the Netherlands has been frozen since 2008 meaning that whilst blank audio and video tapes, MiniDiscs and blank DVDs and CDs are subject to levies, smartphones and MP3 players are not. To bring the system up to date, the Dutch government announced in October that new, increased, private copying levies would apply to all hardware from January 2013.

The new levies are set out below. They increase from €0.03 for CDs and DVDs to €5.00 for tablets over 8 Gb, PCs and laptops.

Understandably, this sudden propulsion of private copying levies into the modern world has caused some tension: last week three of the big hardware providers (Dell, Hewlett-Packard and Imation) along with other big players in the industry sent a letter to the State Secretary for Security and Justice, Fred Teeven, saying that the levies would "cause trade barriers and serious disincentives to operating logistics hubs and distribution centers in the Netherlands". Further they said that the levies were likely to conflict with the Information Society Directive which, they say, requires that fair compensation be based on assessment of the harm caused by private copying.

Last Wednesday, Hewlett-Packard, Acer, Dell and Imation, went further and filed a claim against the Dutch government at the District Court of the Hague claiming damages caused by the new, higher, private copying levies.

It is not clear to this blogger how a claim for damages can be filed when as yet no damages have been incurred, however the big four say that in 2013 alone they will suffer damages of  "tens of millions" of Euros. Damages aside the main gripe seems to be that the new levies were based on an estimate that the entertainment industry has lost €40 million due to private copying. The hardware providers say that the estimate is "excessive and unfounded" and that it includes losses due to illegal downloads which should not be recovered by way of private copying levies. As we reported here, the question of how the private copying exception applies to illegal content has been referred by the Dutch courts to the CJEU. Further the hardware providers argue that it is not right that the new levies should apply to all devices, including devices for professional use that are not used for private copying.

Private copying levies are always a touchy subject and such sudden increases were never going to be popular. Is the solution to make private copying illegal, as it is in the UK, and so abolish the levies? Or to implement one European-wide levy so that at least particular markets within the EU are not disadvantaged?

And will the Dutch move on to think about imposing levies on the cloud?

Should private copying levies apply to the cloud?

A European Commission Cloud Computing Strategy document leaked on Monday says that "questions arise on the possible collection of private copy levies for any private copying of content to, from or within the cloud."



Things were simpler back in the day

Under the InfoSoc Directive, EU member states may introduce an exception to the reproduction right for private copying accompanied by "fair compensation" for rightsholders. Currently most EU member states (notably not the UK) permit such private copying. Legislation does not provide a method for the calculation of fair compensation. The approach adopted in the EU so far has been to impose private copying levies on sales of storage media such as blank CDs, memory sticks, hard disks and smartphones. The levies typically vary with the capacity of the medium.

It makes some sense that, in countries where the levy system is in place, the cloud should also be subject to such a levy, given that one use of the cloud is to store content. However arguably the cloud is primarily a storage place for legitimately acquired content. In that sense it is the original CD that is purchased, rather than being the blank CD onto which a copy is made.



Some cloud storage services that allow users to synch their content for different devices, such as iTunes Match, Spotify's Local Music Files and Kindle already directly remunerate the rights holders.

A further consideration is that  there is no limit to the memory capacity available in the cloud to a user. It is therefore difficult to work out the value of the levies that should be applied.

The Commission has said that it will "assess whether there is a need to clarify the scope of the private copying exception and the applicability of levies, in particular the extent to which cloud computing services allowing for the direct remuneration of right holders are excluded from the private copy levy regime."

The levy system is a controversial one. One the one hand the creative industry trade bodies have just signed a declaration calling on European politicians to ensure that private copying levies remain part of the copyright system in European countries where a private copying right exists. And just yesterday IMPALA, the European independent music companies trade body joined forces with international copyright representatives to argue in favour of remuneration related to private copying.

On the other hand Joe McNamee, of European digital rights group EDRi has said that "It's really quite amazing that the Commission put levies in the strategy in the first place as levies as they stand are an insult to the single market, and for the Commission to add another level of bureaucracy is incomprehensible", and Christian Engstrom, Pirate Party member of the European Parliament is of the view that "It's yet another example of how copyright legislation is completely out of touch with the reality and the times we live in."

Former European Commissioner for Justice and Home Affairs, Antonio Vitorino, is currently leading a. The aim is to lay the groundwork for legislative action on private copying levies at the E.U. level in 2013. His findings are expected by the end of the year.

 

Perhaps we will find clarity in the CJEU's responses to the questions on private copying referred by the Austrian courts in Kino.to in June and the Dutch courts in ACI Adam B.V. v Stichting de Thuiskopie last week on how the private copying exception applies to illegal content, and in the findings of the working group on private copying levies that was set up in November 2011 with a view to more harmonization across the EU.

More on this on CIO and PC Advisor's websites.

No more levies as Spain takes the Nordic route

Private copying: how best can
Spain a-Fjord to pay?

This weblog is grateful to Sandra Alverà (Manager, European Legal and Government Affairs, Panasonic Europe) for some big news from Spain: the country has abolished its copyright levy system and is to establish a fresh one, based much on the Norwegian system: calculation of the payments will be determined by the government following dialogue with stakeholders, payments then being integrated into the national budget. Sandra adds that The Netherlands is also moving towards abolishment of copyright levies --  but is not there yet!

As for Spain itself, Sandra explains that the government is meeting commitments made in the recent electoral campaign: eight years after the controversial implementation of the “canon digital” [subsequently shot down by the Court of Justice of the European Union in Case C-467/08 Padawan], the government decided to abolish the present copyright levy system on Friday 31 December 2011. Criteria for payment under the new scheme will be defined in an official decree within the next two months. At the same time, the government agreed to pass the “Ley Sinde” (Law against Internet-Piracy and illegal downloads) which, among other things, is to introduce a Commission to protect Intellectual Property.

Private copying levy: societies "did not do enough", rules French court

From 1709 Blog team member Asim Singh (Cabinet Singh, Paris) comes this news:

"In a fascinating decision handed down by the Paris High Court (Tribunal de Grande Instance de Paris) on 2 December the Court found Sorecop and Copie France (since merged), the two entities responsible for collecting the private copy levy, negligent. The court ordered them to pay 1 million euros to Rue de Commerce.

The issue arose with respect to the so-called “grey market” i.e., the market in which French consumers purchase, via foreign EU-based websites (states that do not apply a levy or apply a lower one than that which is applied under French law), media subject to the levy. Unhappy about the uneven playing field this creates, Rue de commerce filed an action in unfair competition against certain such foreign operators. After several years of litigation, the French Supreme Court (Cour de cassation) dismissed the action holding that these foreign vendors were neither manufacturers nor importers of the media (nor consumers) and were therefore not liable for payment of the levy. The Court added that they did however have the duty to inform the French consumer of his obligation to pay the levy.

Following this decision, Rue de commerce decided to sue Copie France and Sorecop. It argued, first, that they were not ensuring payment of the levy from the consumers who were purchasing media on the grey market and, secondly, that they were not doing enough to harmonize the levy rates applied across Europe (given that their representatives formed a majority on the private copying commission). The Paris High Court referred to the recent Opus ruling by the Court of Justice of the European Union (June 16, 2011) where the CJEU held :

“Directive 2001/29 ..., in particular Article 5(2)(b) and (5) thereof, must be interpreted as meaning that the final user who carries out, on a private basis, the reproduction of a protected work must, in principle, be regarded as the person responsible for paying the fair compensation provided for in Article 5(2)(b).
However, it is open to the Member States to establish a private copying levy chargeable to the persons who make reproduction equipment, devices and media available to that final user, since they are able to pass on the amount of that levy in the price paid by the final user for that service. 

Directive 2001/29, in particular Article 5(2)(b) and (5) thereof, must be interpreted as meaning that it is for the Member State which has introduced a system of private copying levies chargeable to the manufacturer or importer of media for reproduction of protected works, and on the territory of which the harm caused to authors by the use for private purposes of their work by purchasers who reside there occurs, to ensure that those authors actually receive the fair compensation intended to compensate them for that harm. In that regard, the mere fact that the commercial seller of reproduction equipment, devices and media is established in a Member State other than that in which the purchasers reside has no bearing on that obligation to achieve a certain result. It is for the national court, where it is impossible to ensure recovery of the fair compensation from the purchasers, to interpret national law in order to allow recovery of that compensation from the person responsible for payment who is acting on a commercial basis.”

The Court held that, as direct collection from consumers was materially and financially unfeasible, the collection bodies ought to have taken action against the foreign sites. The Court pointed out that they should have brought proceedings for failure to inform French consumers
adequately of their liability to pay the levy. The Court states that 

“tasked by the French State to collect this remuneration in favour of authors and bound to fulfil this mission in compliance with Community law, Sorecop and Copie France, once they determined that there was a distortion of competition and loss of remuneration for authors due to the foreign vendors, should have, by taking collection action, if necessary judicial, for the private copying remuneration against these foreign distributors, sought the necessary interpretation of French law on the quality of the person liable for payment of this remuneration”. 

The Court also agreed with Rue de commerce that the two collection bodies could have done more to encourage harmonization of the levy rates across Europe in order to fight the grey market in light of their dominant position within the private copying commission.
The Court concluded that the two collection bodies had been negligent (within the meaning of the general tort in the Civil Code) and that their negligence had caused Rue de Commerce a loss of chance to limit or eliminate the grey market and awarded it 1 million euros by way of damages".

There's a link to the Paris High Court decision here

Thuiskopie, Opus and the private copying levy: what next?

Yesterday the Court of Justice of the European Union gave judgment in Case C-462/09 Stichting de Thuiskopie v Opus Supplies Deutschland GmbH, Mijndert van der Lee and Hananja van der Lee, a reference for a preliminary ruling from the Hoge Raad der Nederlanden (the Dutch Supreme Court).  This reference turned on Article 16c(1) of the Dutch copyright law, which provided an exception to copyright in favour of copying for private use. Article 16(2) additionally provides that a maker or importer of an item used for reproduction must pay a private copying levy. Stichting de Thuiskopie is the Dutch body responsible for recovering the private copying levy; Opus, a company based in Germany, sells blank media online via Dutch-language websites that target Netherlands consumers. Opus traded on terms that, where a Dutch consumer placed an order online, that order was processed in Germany and the goods were delivered from Germany to the Netherlands, on behalf of and in the name of the customer, by a carrierg engaged by Opus.

Opus paid no private copying levy in respect of the media delivered to its customers in the Netherlands, either in that Member State or in Germany; the cost of the reproduction media sold by Opus did not therefore include any element corresponding to the private copying levy.

Arguing that Opus had to be regarded as the ‘importer’ and, consequently, responsible for paying the private copying levy, the Stichting sued for payment of that levy. Opus denied liability, saying it couldn't be classified as an importer into the Netherlands of the reproduction media which it sold and that it was individual Dutch consumers who must be classified as importers. The trial court and first appellate court agreed with Opus, following which the Stichting appealed to the Hoge Raad. That court referred the following questions to the Court of Justice for a preliminary ruling:

‘(1) Does [the InfoSoc] Directive [2001/29], in particular Article 5(2)(b) and (5) thereof,  provide any assistance in determining who should be regarded under national law as owing the “fair compensation” referred to in Article 5(2)(b)? If so, what assistance does it provide? 

(2) In a case of distance selling in which the buyer is established in a different Member State to that of the seller, does Article 5(5) of Directive [2001/29] require national law to be interpreted so broadly that a person owing the “fair compensation” referred to in Article 5(2)(b) of the directive who is acting on a commercial basis owes such compensation in at least one of the Member States involved in the distance selling?’

The Court ruled today as follows:

"1. Directive 2001/29 ..., in particular Article 5(2)(b) and (5) thereof, must be interpreted as meaning that the final user who carries out, on a private basis, the reproduction of a protected work must, in principle, be regarded as the person responsible for paying the fair compensation provided for in Article 5(2)(b). 

However, it is open to the Member States to establish a private copying levy chargeable to the persons who make reproduction equipment, devices and media available to that final user, since they are able to pass on the amount of that levy in the price paid by the final user for that service. 

2. Directive 2001/29, in particular Article 5(2)(b) and (5) thereof, must be interpreted as meaning that it is for the Member State which has introduced a system of private copying levies chargeable to the manufacturer or importer of media for reproduction of protected works, and on the territory of which the harm caused to authors by the use for private purposes of their work by purchasers who reside there occurs, to ensure that those authors actually receive the fair compensation intended to compensate them for that harm. In that regard, the mere fact that the commercial seller of reproduction equipment, devices and media is established in a Member State other than that in which the purchasers reside has no bearing on that obligation to achieve a certain result. It is for the national court, where it is impossible to ensure recovery of the fair compensation from the purchasers, to interpret national law in order to allow recovery of that compensation from the person responsible for payment who is acting on a commercial basis."

Public comments from the English-speaking rights management and collection sectors are keenly awaited. Meanwhile, the Court's ruling looks like the source of major headaches for national legislatures (how to provide a scheme which ensures that authors actually receive the fair compensation), courts (how to achieve an appropriate means of enforcing local and EU law in respect of payment which may have to be recovered from a supplier which has no place of business in the jurisdiction or indeed anywhere but cyberspace) and authors and bodies collecting for them (how to identify chargeable uses and then to quantify payments).

Much Ado About Kindergarten - Part 2

Apologies for the delay in posting the promised rundown of the proposed changes to the German Copyright Act – sometimes life really gets in the way of one’s plans... Well, here it is now:

The aim of the draft bill submitted to the Bundestag by “the left party” (“DIE LINKE”) is to extend certain copyright exceptions and limitations to nursery schools (BT Drucksache 17/4876, http://dip.bundestag.de/btd/17/048/1704876.pdf).


Public communication of a published work

Currently, s. 52 subs. 1 sent. 1 German Copyright provides that the public communication of a published work shall be permissible at events that cumulatively meet the following requirements:
- they serve no gainful purpose on the part of the organiser,
- spectators are admitted free of charge, and
- the performers, if any, do not receive special remuneration.

According to s. 52 subs. 1 sent. 2, this is usually subject to payment of an equitable remuneration, but s. 52 subs. 1 sent. 3 contains a number of exceptions. Events by the Welfare Services and school events are exempt from the obligation to pay equitable remuneration, on condition that in accordance with their social or educational purpose they can only be accessed by a specifically limited circle of persons. Not all categories of works are covered, though. S. 52 subs. 3 provides that public stage performances and broadcasts of a work and public presentations of cinematographic works always require the consent of the copyright owner. The draft bill extends the above exception to events by child day-care centres and centres for the after-school care of pupils.

At first glance, such events appear to be similar to school events, which would militate in favour of the proposed amendment. However, things are a bit more complicated. School attendance is both compulsory (at least for nine or ten years) and – more crucially – free of charge. Nursery school attendance is not compulsory, but neither is it free. Even most state-run nursery schools charge fees, e.g. €150 per month per child. While I’m aware that this is probably not enough to recoup costs, let alone make a profit, I still wonder if in respect of events at such nursery schools, spectators (i.e. the children) can be deemed to be admitted free of charge for the purposes of s. 52 subs. 1 sent. 1, and if the public communication might serve a gainful purpose on the part of the organiser (i.e. the nursery school). Does anyone have any thoughts on this?


Reproductions of small parts of printed works or of newspaper articles

The second change proposed by the draft bill concerns s. 53 subs. 3 sent. 1, according to which it shall be permissible to make or cause to be made copies of small parts of a printed work or of individual contributions published in newspapers of periodicals for personal use
- in teaching, in non-commercial institutions of education and further education or in institutions of vocational education in the quantity required for one school class; or
- for examinations in the above institutions as well as for State examinations and examinations in schools and universities in the required quantity. The draft bill extends this exception to education in child day-care centres and in centres for the after-school care of pupils.

I have no objections to this. It should be pointed out, however, that this exception only concerns the making of copies of small parts of a printed work or of newspaper articles. S. 53 subs. 3 sent. 2 (and the proposed sent. 3) expressly stipulates that the reproduction of a work that is intended for teaching purposes at schools (or purposes of education in nursery schools) shall only be permissible with the consent of the copyright owner. Consequently, copying a whole work or substantial parts of a work is still subject to a licence and nursery schools may not, for instance, make free copies of sound recordings either.


Reproduction of graphic recordings of musical works and inclusion in private copying levy

Arguably the most controversial amendment proposed by the draft bill relates to the reproduction of graphic recordings of musical works. At the moment, s. 53 subs. 4 lit. a) provides that reproduction of such works shall only be permissible without the consent of the copyright owner
- if carried out by manual copying;
- for the inclusion in a personal archive, if and to the extent that reproduction is necessary for this purpose and if a personal copy of the work is used as the model for reproduction; or
- for personal use if the work has been out of print for at least two years.

The draft bill adds a second sentence to this that reads as follows: “In the cases of subsection 3, number 3 [i.e. education in child day-care centres and in centres for the after-school care of pupils], by way of derogation from sentence 1 lit. a), the reproduction [of graphic recordings of musical works] shall be permissible without the consent of the copyright owner.”

So there we have it: a special exception just for nursery schools! Schools, universities, music schools, private music teachers, the Welfare Services, choirs, the YMCA, you, me – everybody has to obtain a licence, only nursery schools get a free ride. I find that very peculiar, to say the least.

Finally, to make up for this new exception to a certain extent, the draft bill proposes to amend s. 54 and 54a to include graphic recordings of musical works in the private copying levy. In other words, copyright owners are supposed to receive equitable remuneration for the nursery school copies from the producers and importers of reprographic appliances such as photocopiers and scanners.

To my mind, this is all quite messy. The reason why the current exceptions do not include graphic recordings of musical works anymore – they did until 1985 – is that there was a dramatic rise in the number of copies due to the advances in reprographic technology. Choirs and other groups would not buy a copy of the work for each member, but only buy or even borrow a single copy and then make the required number of photocopies. Since the production of sheet music is expensive, the legislature deemed this unacceptably detrimental to authors and other copyright owners and prohibited the reproduction of graphic recordings of musical works except in the abovementioned cases (BT Drucksache 10/387, http://dipbt.bundestag.de/dip21/btd/10/008/1000837.pdf).

Cynics might say that in practice probably nothing much changed and choirs (and kindergarten teachers...) continued their copying frenzies regardless or even in ignorance of the law (one has to admit that, being an exception from an exception that again has exceptions, it is rather complicated). Prosecution would be both impracticable and unpopular. Perhaps, then, it would be better to create a proper private copy exception for sheet music and give composers and lyricists a fair share in the private copying levy. After all, nowadays it is possibly even easier to copy a sound recording than to copy sheet music, but there is no exception from the exception for sound recordings. On the other hand, that would be one more stone paving the way to a "culture flat rate", and I'm not sure that I should like that.

I'll keep an eye on the fate of the draft bill while I continue to make up my mind...

The translations of the relevant provisions from the German Copyright Act are a combination of the WIPO translations (http://www.wipo.int/wipolex/en/text.jsp?file_id=126254#JD_DE080_S53) and my own.

Downloads and levies: it's Double Dutch Day!

In "Copyright owners better off in a regime that allows downloading from illegal sources" this weblog reported on the 15 November ruling of the Court of Appeal of the Hague in Eyeworks v FTD. Today the IPKat posted the an English translation of the judgment in full (here) together with a short note from Dutch copyright practitioner and scholar Dirk Visser.

Dirk has now been able to procure an English translation of an even more complex ruling, on some of the same issues and decided by the same court on the same day, in ACI Adam BV and others v Stichting de Thuiskopie and another (here).  Explains Dirk:

"Here is another decision by the same Court from the same day, parts of it are identical (on the private copying from an illegal source), but it is an entirely different case, between different parties, brought by the blank media industry against the home copying levy organisation in the Netherlands. This one is (even) more complicated.

The Court rules that downloading from an illegal source is permitted in The Netherlands -- and has to be compensated by ‘fair compensation’ (through levies or otherwise). The Court considers that this might be in violation of the Three-step test of article 5.5 of the Copyright directive, but also that an interpretation of Dutch national copyright law in line with the directive on this issue would result in an inadmissible interpretation ‘contra legem’".

Dirk feels disappointed that neither case got as far as a reference to the Court of Justice of the European Union and, in terms of clarifying the principles involved and ensuring that courts throughout the EU take the same line ie is quite right -- though a case can be made for saying that, if the Court of Appeal of the Hague could determine the issues before it without needing external help, it was right to do so.

Spanish private copying levy case: some early responses

It all adds up ...

The IPKat has already posted on today's ruling of the Court of Justice of the European Union in Case C‑467/08, Padawan SL v Sociedad General de Autores y Editores de España (SGAE), which ruled that indiscriminate copyright levies fall foul of harmonised European Union rules under the InfoSoc Directice (2001/29).  This post draws the attention to some of the early comments on it.

Arstechnica's "Europe smacks "indiscriminate" copyright levies on blank CDs, DVDs" (by Nate Anderson) explains the problem as follows:

"Spain allows its citizens to make private copies of copyrighted works—but it compensates creators for the economic harm of this practice by laying down a levy on digital media and devices. If you purchase blank CDs or DVDs, or if you buy DVD burners or possibly even an MP3 player, you have to pay up. But what if "you" aren't a person at all? Imagine a nonprofit that needs to back up its donor records, or a business that wants to burn its own promotional CDs, or a government agency that buys some computers with DVD burners built in. They won't be churning out Bob Dylan CD mixes, so how can it be fair to make them pay the levy?"

The author adds:

"This raises an obvious question: how do you know if blank media or burners will be used for private copying or not? The court laid down a distinction. When sold to "natural persons for private purposes," the country can assume that private copying will take place and impose the levy. But when sold to businesses or other non-natural persons, they can't; no levy is allowed.

The decision would appear to have little impact on consumers, though it does mean that business who sell such digital media and devices won't have to pay levies on every item they sell. The distinction the court makes here seems a sane one, though true fairness would obviously mean that the levy is only paid on each piece of media or device actually used for private copying".

English-language Basque website EITB's feature, "Europe rules Spanish digital copyright tax 'illegal'", carries only a short summary but reminds readers it's still for the Provincial Court of Barcelona to determine whether the Spanish levy (or 'canon') is "imposed indiscriminately".

From Hollywood Reporter comes "Spain's Tax for Purchasing Equipment to Record Digital Content Ruled Illegal" by Pamela Rolfe. This piece goes into detail as to the actual sums levied and lists the recording devices which the levy covered: these include mobile phones as well as more conventional hardware.  Rolfe observes that last year the levy pulled in a handsome 100 millions euros for collecting societies, of which SGAE received 26%,