It is impossible, in the light of EU law, to apply a levy on private copying of protected works indiscriminately to all types of data devices, such as CDs, MP3s and DVD-Rs. The tax can only be levied on material “where it may be presumed that they are to be used for private copying”. This opinion by the Advocate-General at the European Court of Justice, Verica Trstenjak, presented on 11 May in Case C-467/08, tends to restrict the scope of interpretation of the 2001 EU directive on copyright.

There has been an unending battle over private copying between technology manufacturers (against) and rights holders (for). Under the previous Commission, Digital Europe – which represents firms like Canon, Apple, Ericsson and Microsoft – even broke off talks with publishing rights societies last January. In this Spanish case, the EU judiciary was asked to decide between the national intellectual property rights management society (Sociedad General de Autores y Editores, SGAE) and PADAWAN, a manufacturer of electronic storage media. SGAE claimed payment of compensation for private copying of €16,759.25 in respect of the storage devices sold by PADAWAN between September 2002 and September 2004.

Remuneration for private copying exists in around 20 member states. It is authorised by the 2001 directive provided it represents “fair compensation” for rights holders. The Audencia Provincial de Barcelona, before which the case was brought on appeal, requested the Court of Justice to state how such fair compensation should be organised. Can the SGAE claim a levy on all storage media sold by PADAWAN or only on those which it may be presumed have been used for private copying?

The advocate-general opted for the latter response. The directive, she argues, gives member states “wide discretion as to how their respective national systems implement such fair compensation”. At the same time, the states “are obliged to ensure a fair balance” between rights holders and those directly or indirectly liable to pay the compensation. Trstenjak explains that there must be “a sufficiently close link between the use of the right and the corresponding financial compensation for private copying”. She therefore rejects indiscriminate application of such a levy – as used by the SGEA – to undertakings and professional persons (who pay the compensation when they buy the devices), who from experience purchase digital reproduction devices and media for purposes other than private use. This “is not fair compensation within the meaning of the directive,” she concludes.

Although the advocate-general’s opinion may influence the Luxembourg-based judges, it is not binding on the Court of Justice, which will hand down its verdict at a later date.