European Advocate General Says Copyright Levy Should Only Be Charged If There's Actual Content Copying
from the no-universal-levy dept
The US doesn't have a blank media levy on things like blank CDs, but many other countries do, including Canada and throughout Europe. We've always considered this a "you must be a criminal" tax. It's gotten to the point where the cost of some forms of blank media is made up mostly by the levy, and the actual media cost is minimal. It appears that some legal experts in the EU are beginning to question the legality of such a levy as well. The Advocate General of the Court of Justice of the European Union (CJEU) has apparently claimed that such levies must be directly linked to private copying of copyrighted material for them to be legal.The specific case involved a Spanish collection society demanding cash from a company that sells blank media -- but the company challenged the legality of the mandatory levy, noting that people weren't using the media for copying copyrighted content. The Advocate General, Verica Trstenjak, seems to agree with the blank media company:
"There is certainly a linkage between the making of a private copy and the payment which is owed. That applies regardless of how the respective Member State's system of collection for compensation for private copying is organised in detail and whether it is financed, for instance, by means of a levy," she said in her opinion. "Logically, from the viewpoint of Community law it must also be required that in any case there be a sufficiently close link between the relevant levy and the use of the abovementioned devices and storage media."Of course, she also left an out for the collection societies. Apparently, if they can show "potential" use, they may be able to get away with it:
....
"Where a Member State opts for a system of charging or levying in respect of digital reproduction equipment, devices and media, such a charge can be based upon [the Copyright Directive] only where it may be presumed that those equipment, devices and media are to be used for making reproductions covered by the private copying exception," she said. "Indiscriminately charging a levy, without duly taking into account the fact that, owing to factors specific to a certain line of business, the devices in question could be acquired for purposes other than private copying, may not be based on [the Directive]. It is not 'fair compensation' within the meaning of that provision," she said.
"The requirements in relation to that link should not be raised so high that ultimately the actual use of the relevant devices for the purposes of private copying would have to be required. Rather, even potential use would have to be regarded as sufficient,"However, in this particular case, she felt that the levy had been applied "indiscriminately" and without justification, as the linkage had not been shown.
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: blank media levy, copyright, europe, spain
Reader Comments
Subscribe: RSS
View by: Time | Thread
So next...
[ link to this | view in chronology ]
So next...
[ link to this | view in chronology ]
How could the levy money possibly be distributed fairly anyway?
[ link to this | view in chronology ]
Re:
Many hundreds of thousands of people who don't want to lend someone their hard drive/ flash drive or who don't want to spend 3x as much on a dvd just to have a hard copy of a file.
[ link to this | view in chronology ]
ECJ
[ link to this | view in chronology ]
hrrmmm OHHHH LETS FUCK CANADA
cost of a dvdr ( which has no levy ) 50 cents
ONE has DRM one dont
ACTA makes yu criminal for breaking locks
GUESS why levy isnt on dvdrs
[ link to this | view in chronology ]
solution
http://www.youtube.com/watch?v=v60oNUoHBYM
YES folks SMASH THE KIDS TO PIECES
WHO NEEDS LAW WERE POLITICIANS AFTER ALL
[ link to this | view in chronology ]
Uhm...
Source
[ link to this | view in chronology ]
Re: Uhm...
What is everyone burning their LiveCDs' to?
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Anything that can hold a file can potentially hold infringing files.
[ link to this | view in chronology ]
Re: answering to Crade
Remember the levy is no to compensate for infringing use, is to compensate for the loses due to private copying (one of the fair use "exceptions" in EU copyright).
In theory there is nothing stopping any government for proof of the loses before assigning the compensation.
[ link to this | view in chronology ]
I think the USA does, or did, have such a levy
I think we do, or at least did, have such a levy. I can't find a full reference to it but stand-alone direct-to-CD recording machines require special, higher priced, blank "music CD" media.
Here's a link to a guy talking about this limitation on his PIONEER PDR-509 CD Recorder: http://www.audiokarma.org/forums/showthread.php?t=22150
Maybe this levy has been lifted now because everyone uses computers to do this recording. I'm not sure. Maybe someone else will remember the details on this.
Didn't blank Phillips cassette have such a levy as well? It was this wrangling over digital copying that killed the DAT recorders and, I think, the mini-disk recorders.
Peace,
Rob:-]
p.s. Oh, I see Jay has answered this already with a good link to the background. rs
[ link to this | view in chronology ]
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re:
"The Advocate General of the Court of Justice of the European Union (CJEU) has apparently claimed that such levies must be directly linked to private copying of copyrighted material for them to be legal."
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re:
Do you not even read the posts before criticizing? The Spanish courts actually ruled in favor of the levy. It was the European Court of Justice that reversed it.
It's not a Spanish issue. Honestly, you used to at least make an occasional point that got people thinking. Now you just make stuff up.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re: Re:
[ link to this | view in chronology ]
What's the cost of graffiti?
[ link to this | view in chronology ]
2 why compensate them? In fact it got me thinking: copyright is a monopoly on something that would otherwise be common property. I think copyright holders should have to pay a significant fee to the state for that priviledge... Harvesting common resources is som/ething you get charged for. Why not apply that to intelectual products?
[ link to this | view in chronology ]
Brilliant logic!
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]