EDRi’s response to the consultation on private copying levies

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Deutsch: [EDRi-Stellungnahme zur Konsultation über Abgaben auf Privatkopien | https://www.unwatched.org/EDRigram_10.11_EDRi-Stellungnahme_zur_Konsultation_ueber_Abgaben_auf_Privatkopien?pk_campaign=edri&pk_kwd=20120606]

In November 2011, the European Commissioner Michel Barnier appointed Mr
Antonio Vitorino – former EU Commissioner – as mediator in the dialogue
on private copying levies. A public consultation was (quite discreetly)
launched by Mr Vitorino in April 2012. The consultation deadline, to
which EDRi answered, was last Thursday.

In its answers, EDRi underlines the incoherence of having a levy on
private copying when there is no consistency in EU regarding the scope
of private copying. It is indeed fundamentally impossible to harmonise
private copying without fully harmonising the copyright legislation
especially on exceptions and limitations, as well as resolving the
problem of legal protection for technical protection mechanisms.

The logic behind private copying levies is that there is a specific harm
to the creator caused by the legal owner of a copy of the content in
question who uses the content as he(she) sees fit. This assumption
appears somewhat dubious on its own and becomes even more questionable
when we consider that there are major question marks over whether or not
the actual creators, particularly niche artists, receive an appropriate
proportion of the money collected in the EU Member States that
currently collect levies.

On the other hand, while the harm caused to creators has never been
clearly demonstrated, the damage to the equipment market in Europe is
very easy to see, as is the exceptionally wasteful and costly collection
of levies by and for collecting societies.

Moreover, private copy levies seem to hinder creativity and creation in
the digital age more than they encourage them. They skew the market by
compensating rightsholders for economic losses that have never been
clearly demonstrated. Private copy levies might even have a chilling
effect on new business models including digital services. New devices
and services are being developed that allow the creation and
commercialisation of works. Some devices and services have
their own models to remunerate creators. However, pressure is mounting
for levies to be spread to cover such services, even when copying,
particularly private copying, are not a main function of the services.
Secondly, some emerging business models are based on licensing content
and do not even envisage the possibility of private copies.

One important issue with the consultation is that it assumes that the
private copying levies should exist, when it does not appear to be an
equitable solution. Since the Directive 2001/29/EC recognises the
possibility of an exception for private copying, a levy imposed on
exercising a right that is yours by law does not seem to be justified,
unless there is a significant damage that can be quantified. Discussions
on this alleged negative economic impact have been going on
for a long time but the damage, if it exists at all, was never quantified.

In a recent Opinion, the European Economic and Social Committee (EESC)
stresses the unfairness of private copying levy as “private copying is
an integral part of fair use”. Moreover, the opinion underlines that “it
should certainly not apply to hard drives used by businesses in the
course of their industrial and commercial activities.” (Point 1.5 of the
Opinion) In its final point, the Opinion states that a tax levied in
order to cover the cost of private copying is based on the presumption
of guilt, and that “private copying is a legitimate practice
which enables the user to change media or hardware and which should be
recognised as a right of the legal holder of the license for use under
the concept of fair use” (point 4.6.7).

As long as the damage has not been quantified and not even clearly
verified, no tax should be raised to compensate an unknown damage. Some
other solutions could possibly solve the “problem” encountered, such as
a compensation scheme based on the sale price of the work. That would
firstly solve both the issue of the compensation of the alleged loss of
creators and the question of who is liable to pay for this compensation,
and secondly, that would avoid problems in cross-border sales.

Statement by Mr. António Vitorino on the mediation process
concerning private copying and reprography levies (2.04.2012)
http://ec.europa.eu/commission_2010-2014/barnier/docs/speeches/20120402/statement_en.pdf

Opinion EESC on the “Communication from the Commission — A Single Market
for Intellectual Property Rights — Boosting creativity and innovation to
provide economic growth, high quality jobs and first class products and
services in Europe” (6.03.2012)
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2012:068:0028:0034:EN:PDF

Consultation response: https://edri.org/files/levies_consultation.pdf

(Contribution by Marie Humeau – EDRi)