ECJ Advocate General: Limitations to the levy on private copies

By EDRi · May 19, 2010

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Deutsch: [EuGH: Generalanwältin will Beschränkungen bei Abgaben auf Privatkopien |]

Verica Trstenjak, Advocate General at the EU Court of Justice, believes the
levy on private copies imposed on digital equipment, devices and media
should be limited to cases “where it may be presumed that they are to be
used for private copying”.

The European Directive on copyright and related rights in the information
society gives reproduction rights for audio, visual and audio-visual
material to authors, performers and producers, but lets the Member States
allow private copying, provided there is a ‘fair compensation’ for

Spain has decided to allow the reproduction for private use of works which
have already been circulated, without the rightholders’ permission and has
provided for a lump-sum compensation by means of a levy to be paid by
manufacturers, importers or retailers to intellectual property rights
management societies on private copies, applied indiscriminately to digital
reproduction equipment, devices and media. In Trstenjak’s opinion, such a
levy in favour of authors, artists and producers may not be applied
indiscriminately to companies and professional persons who acquire equipment
and data media for other purposes.

The question arose as SGAE, a Spanish collective society, sued PADAWAN, a
company marketing electronic storage media such as CD-Rs, CD-RWs, DVD-Rs and
MP3 players. SGAE claimed the payment of 16 760 euro as compensation for
private copying related to the storage media marketed between September 2002
and September 2004 by the company. The appeal to the case was brought in
front of the Audiencia Provincial de Barcelona which had to consider whether
the Spanish levy rule was compatible with the European directive and asked
ECJ on how the “fair compensation” required by the directive should be
organised. The decision of the Spanish court and therefore the output of
SGAE case will depend on ECJ’s answer.

According to the General Advocate, although the concept of “fair
compensation” used in the directive should be interpreted uniformly in all
the Member States, each Member State may determine the most appropriate
criteria for ensuring compliance with the directive concept. Irrespective of
the system used by each Member State in calculating fair compensation, there
is the obligation to ensure a fair balance between the rightholders affected
by the private copying exception, and the persons directly or indirectly
liable to pay the compensation. Therefore, in her opinion, when a Member
State, such as Spain, chooses a levy on digital reproduction equipment,
devices and media, there should be the presumption that the respective
equipment, devices and media are to be used for making private copies and
not for other purposes.

Although the Court of Justice may be influenced by the Advocate General’s
Opinion, this has however no binding force as the role of the Advocates
General is to independently propose to the Court a legal solution to the
cases for which they are responsible.

Court of Justice of the European Union – Press release no 45/10 on SGAE case

Opinion of Advocat General Trstenjak on SGAE case (11.05.2010)

Advocate-general limits application of private copying levy (11.05.2010)