TechNotes - Top 10 issues for European Copyright Levies

TechNotes Copyright

 

EU parliament resolution 2014 on a report private copying levies (2013/2114(INI))

[The European Parliament] Believes that the private copying system is a virtuous system that balances the exception for copying for private use with the right to fair remuneration for rightholders, and that it is worth preserving.

 

1. Do copyright levies apply to me? Copyright levies are intended to compensate copyright owners for users making copies of copyright content (e.g. music or videos) privately and for non-commercial purposes. These levies are not paid directly by the user, but by those trading in the relevant devices that may be used to make copies. As such, if you are selling or importing hard drives, flash storage or any media playback device (e.g. smartphones or MP3-players or even printers) in the EU then most likely yes!

2. Levy schemes vary across Europe: The levy systems are in general derived from EU legislation. For example, Article 5(2)(b) of the InfoSoc Directive allowed EU member states to introduce private copying exemptions to copyright infringement in their respective countries. However, the implementation of this provision across Europe is quite different. Every country needs to be looked at separately. Some countries like the UK and Ireland do not have copyright levy schemes at all.

3. Who is liable? This depends on the specific country. The parties who are liable will turn on who is selling the devices directly to users in that country. These may include manufacturers, importers, wholesalers or retailers of the devices, or even for example telecoms companies selling smartphones.

4. Who is paid the levies? Usually there are collecting societies assigned with collecting the different levies in each EU country, on behalf of the copyright owners they represent.

5. How expensive is it? Generally speaking, the levy schemes account either for specific types of devices (e.g. 6.25 € for a smartphone in Germany), or the levy is calculated based on the amount of storage on the device, or even a percentage of the sales price of the device.

6. When does the levy apply? Usually only products first entering the relevant market are subject to the levy scheme, e.g. when the smartphone is first imported into the relevant country.

7. Reporting obligations: In most jurisdictions the importer or manufacturer, as well as the retailers, have to provide detailed reports on the number of devices imported, manufactured and sold to the collecting society. In some jurisdictions (e.g. Germany) the retailers may be exempt from liability if they report diligently on the number of devices they acquired/resold.

8. How does payment work? Based on the reported numbers, the collecting society will the calculate the fees owed and send an invoice to the liable party.

9. Can the obligations be outsourced to a contractor? If the different collecting societies, such as Auvibel in Belgium or (at least in one specific case) COPIE FRANCE, are willing to enter into specific payment schemes, parties’ contracts may potentially nominate agents and resellers to pay the levy. However, such agreements usually do not change the liabilities, but are rather only payment structures. Whether this is permissible will also vary between different jurisdictions.

10. No exceptions? Really? There is usually one exception to these levy schemes, for devices used solely in a business context and therefore generally not used for storing and replaying copyrighted material such as audio or video content for private purposes. However, proving that sales take place in a strict business context is challenging and would require a large amount of supporting documentation. In certain jurisdictions, general market data may be accepted to prove the percentage of all devices sold which are sold to business customers. The specifics depend on each jurisdiction.

This document (and any information accessed through links in this document) is provided for information purposes only and does not constitute legal advice. Professional legal advice should be obtained before taking or refraining from any action as a result of the contents of this document.