European Advocate General Says Copyright Levy Should Only Be Charged If There's Actual Content Copying

from the no-universal-levy dept

Mon, Jun 21st 2010 5:02am — Mike Masnick

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."

....

"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.

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:

"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.

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Filed Under: blank media levy, copyright, europe, spain

28 Comments

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Rose M. Welch (profile), 21 Jun 2010 @ 4:37am

So next...
...is a levy on external hard drives?
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Rose M. Welch (profile), 21 Jun 2010 @ 4:38am

So next...
...is a levy on external hard drives?
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Bob, 21 Jun 2010 @ 5:10am

This sort of tax is out of date. Who even bothers burning CDs anymore?

How could the levy money possibly be distributed fairly anyway?
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Fuchsia, 21 Jun 2010 @ 5:21am

ECJ
The standard abbreviation for the European Court of Justice is ECJ not CJEU.
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NAMELESS ONE, 21 Jun 2010 @ 5:29am

hrrmmm OHHHH LETS FUCK CANADA
cost of a cdr 60cents CAD
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
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NAMELESS ONE, 21 Jun 2010 @ 5:31am

solution
hire/elect more politicians like this one
http://www.youtube.com/watch?v=v60oNUoHBYM

YES folks SMASH THE KIDS TO PIECES
WHO NEEDS LAW WERE POLITICIANS AFTER ALL
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Jay (profile), 21 Jun 2010 @ 5:47am

Uhm...
Actually, we do have a levy:

Source
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Heiko, 21 Jun 2010 @ 6:17am

Yes so it is in the EU with the taxes, shits really.
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crade (profile), 21 Jun 2010 @ 7:24am

I don't get it, how could there ever not be potential use?
Anything that can hold a file can potentially hold infringing files.
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RobShaver, 21 Jun 2010 @ 7:37am

I think the USA does, or did, have such a levy
"The US doesn't have a blank media levy on things like blank CDs"

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
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Anonymous Coward, 21 Jun 2010 @ 7:46am

I know printers in Europe have a levy. Some countries where complaining about it because it makes them uncompetitive with their neighbours that don't have those levies.
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btrussell (profile), 21 Jun 2010 @ 8:09am

Re: Uhm...
They don't show Linux getting a share.
What is everyone burning their LiveCDs' to?
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masquisieras, 21 Jun 2010 @ 8:27am

Re: answering to Crade
In this case how there is no potential for private copy is simple, the levy is charged to companies as well that administration, and the administration as well than the enterprise has no private copy right so they are compensating for doing something that can't legally do.

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.
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Anonymous Coward, 21 Jun 2010 @ 8:28am

"Spanish collection society" - spain, say no more. they are more than willing to toss performers and rights holders under the bus, they have shown that repeatedly. why not be a little more clear that this is a spanish issue?
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masquisieras, 21 Jun 2010 @ 8:50am

Re:
no more like the "Spanish collection society" decided to cross the highway on foot an complain that the traffic is not stopping.
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Monty, 21 Jun 2010 @ 9:02am

NO ONE expects the Spanish Collection Society's Inquisition!
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ASTROBOY, 21 Jun 2010 @ 9:45am

What happens when a Canadian brings in low cost media from the US? Are they confiscated at the boarder? Do they get away with it on a personal basis? Can they buy them from US ebay sellers?
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fsm, 21 Jun 2010 @ 9:54am

Re:
Who?

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.
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Anonymous Coward, 21 Jun 2010 @ 10:52am

Re:
Probably because you can't read, so it wouldn't help anyway.

"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."
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Anonymous Coward, 21 Jun 2010 @ 11:07am

The levy could only truly be argued to be an unrepresented tax if one did not have the legal freedom to make a private copy in the first place. Whether or not one actually does does not change whether or not they have the ability to. Consider also that if part of what determines your property taxes is your house's proximity to certain city amenities such as major bus routes, libraries, etc, and you still have to pay those portions of your property tax, whether or not you ever take advantage of those amenities.
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Anonymous Coward, 21 Jun 2010 @ 11:16am

Re:
As soon as I have to subsidize the local privately owned bus company whenever I buy a car that I might use to travel instead of the bus, you may have a point.
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Anonymous Coward, 21 Jun 2010 @ 11:25am

Re:
Spain is different than the Untied States and therefore bad. Flawless logic.
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Mike Masnick (profile), 21 Jun 2010 @ 11:29am

Re:
spain, say no more. they are more than willing to toss performers and rights holders under the bus, they have shown that repeatedly. why not be a little more clear that this is a spanish issue?

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.
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Ben (profile), 21 Jun 2010 @ 11:45am

What's the cost of graffiti?
So, who can tell me what the tax or levy on spray paint is? Though I don't have stats, I'd wager that urban graffiti does more actual harm to property owners, municipalities, and local communities than 'piracy' does to the multimedia industry. It's rather ridiculous that victims or local governments self-finance the removal of graffiti, an actual, physical harm, while these taxes do not. The ridiculity of this proposal quickly becomes apparent once we extract it from the narrow view of copyright and intellectual property...
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PrometheeFeu (profile), 21 Jun 2010 @ 1:11pm

1 this is not a piracy tax. It is to compensate copyright holders for legal private copy exception to copyright law.
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?
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Anonymous Coward, 21 Jun 2010 @ 3:43pm

"Spain is bad!" - TAM

Brilliant logic!
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Anonymous Coward, 21 Jun 2010 @ 4:16pm

Re: Re:
Although individual copyrights are held by private corporations and entities, copyright in general is a social contract and public institution that is not owned by any single such organization. So I think that the point very much applies.
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Anonymous Coward, 21 Jun 2010 @ 7:43pm

Re:
Made even more brilliant by the fact that he got the facts completely wrong.
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