The former Commissioner for Justice and Internal Affairs, António Vitorino, announced, on 2 April, the reopening of the “dialogue” on levies for “copies for private use” applied in some 20 countries on goods that are typically used to produce copies (such as blank CDs, recording equipment, MP3 players, computers, printers, scanners, etc) as fair compensation for the loss of revenue incurred by the authors. This is an old bone of contention between the rights holders (who are in favour of this levy) and the manufacturers of the levied technology (who are against it) and the last attempt at dialogue, in 2010, failed. In the context of several initiatives on copyright in the EU, Commissioner Michel Barnier (internal market) asked the former Portuguese defence minister to identify the best manner to achieve coherence, effectiveness and legitimacy in the implementation and application of the principles and legal framework underpinning private copying and reprography levies. Vitorino is therefore faced with the difficult task of finding a compromise between the parties – namely, with regard to the methods implemented for payments and the management of these payments. The Commission will then present a legislative text. In this debate, the Commission still aims to reconcile private copying and reprography levies with the principle of free movement of merchandise. The national copyright collecting societies, which collect the levies in over 20 countries in the EU, are being accused by the manufacturers of lacking transparency with regard to the products in question and the amounts levied.

Meanwhile, the rights holders continue to defend the merits of the system, but are open to dialogue. The day before Vitorino’s announcement, the European Grouping of Societies of Authors and Composers (GESAC) denounced – through the release of a study it had commissioned – the negative impact that withdrawing the private copy and reprography system would have: the rights holders would lose both the revenue generated by the tax, and the incentive to create; the revenues of the manufacturers of copying or reprography equipment could therefore diminish in the long run, since rights holders would be less enthusiastic; and, in the end, consumers would be losing out on content.

Among other rulings, the game has changed with the EU Court of Justice’s Padawan ruling, in October 2010. The ECJ ruled that the application of the private copying levy, “with respect to digital reproduction equipment, devices and media not made available to private users and clearly reserved for uses other than private copying [professional, for instance], is incompatible” with EU law. In its 16 June 2011 ‘Opus’ ruling (C-462/09), the ECJ notes that a member state that has introduced an exception for private copying and reprography “must achieve the result of obtaining fair compensation” for authors. This is an “obligation to achieve a result,” which also applies when the HQ of the seller of copying and reprography equipment is in another state.

The GESAC study is available at www.europolitics.info > Search = 312081