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Austrian Ruling Likely To Have Big implications For Copyright Levies Across EU

from the game-on-for-GEMA? dept

Wed, Sep 16th 2015 11:09pm — Glyn Moody

Techdirt has been following for a while the copyright levy system in the European Union as it slowly descends into complete chaos, unable to reconcile its analog origins with a digital world where it just makes no sense. A post on the IPKat blog offers something very interesting in this context : a court case that not only quashes Austrian law on private levies, but one that is likely to have important knock-on effects in other EU countries. As the blog post explains, the decision by the Commercial Court in Vienna is just the latest chapter in a long-running saga involving the Austrian collection society, Austro Mechana, and Amazon:

Austro Mechana initiated the proceedings against a number of Amazon entities in October 2007. The main request of Austro Mechana was to oblige Amazon to pay copyright levies for all storage devices sold to customers in Austria. Austro Mechana also filed an information request regarding the quantity and type of storage devices sold to customers in Austria.

Amazon lost at both first instance and in appeal. After that, as suggested by Amazon, the Austrian Supreme Court submitted a request for a preliminary ruling to the CJEU [Court of Justice of the European Union] (September 2011). Amazon had argued that the Austrian law on copyright levies and the procedures implemented by Austro Mechana for the collection of copyright levies complied with neither the [EU's] InfoSoc Directive nor the jurisprudence of the CJEU.

Europe's highest court, the CJEU, handed down its opinion back in 2013. It was largely in favor of Amazon, so the Austrian Supreme Court cancelled all the previous rulings, and sent the case back to the Vienna Commercial Court to consider in the light of the CJEU guidance. The Court of Justice of the European Union does not rule on particular cases, but considers the larger questions of law that are involved, leaving it to local courts to use its published guidance in their subsequent judgments.

There were three main grounds why the Austrian Commercial Court ruled that the entire Austrian copyright levy system had to go. First, it did not provide a proper re-imbursement right: if storage devices are not used for private copying, there must be an "effective" mechanism that allows for re-imbursement of the levy. Austria's system didn't. Secondly, there was no distinction between lawful and unlawful sources for private copying, something else that was required by the InfoSoc Directive. Finally, half of the monies raised by copyright levies were distributed to "social and cultural institutions", rather than to the artists, and that fell foul of the CJEU ruling too.

As the IPKat points out, it is likely that all of these issues affect Germany's copyright levy system, too, so we can probably expect a legal challenge there to be successful. And there's a delightful sting in the tail of the blog post:

The ruling of the Commercial Court of course also raises the question whether dealers, manufacturers or importers may have a claim for repayment of the levies on the principles of unfair enrichment. If such requests would to be made, they might well jeopardise the very existence of Austro Mechana.

Presumably the same would be true in Germany, which would leave the central collecting organization there, the ZPÜ (the Zentralstelle für private Überspielungsrechte) exposed as well. One of the founders of the ZPÜ, and presumably still one of its most important members, is GEMA, well known to Techdirt readers. The possibility that a future court case might force GEMA to pay back a good chunk of all the copyright levies it has received is, of course, a tantalizing prospect.

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Filed Under: austria, cjeu, copyright, copyright levies, eu, eucj, european court of justice

13 Comments

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Ehud Gavron (profile), 17 Sep 2015 @ 2:13am

type: ausrian
"Ausrian Commercial Court" could use another "t".
Best,
E
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Glyn Moody, 17 Sep 2015 @ 2:38am

Re: type: ausrian
Thanks, fixed.
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Anonymous Coward, 17 Sep 2015 @ 4:57am

Does such a system actually exist? As in, when has anyone had their levies refunded on the basis they were not committing copyright infringement on their storage media?
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Anonymous Coward, 17 Sep 2015 @ 7:06am

Re:
It wouldn't be considered infringement if they'd paid the levy. But as the article noted, personal users never had any possibility of recovering the fee and companies could do it in theory but not in practice - which is one reason for their ruling.
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Mason Wheeler (profile), 17 Sep 2015 @ 7:34am

If such requests would to be made, they might well jeopardise the very existence of Austro Mechana.

Well let's hope so. When a company stops fulfilling a societally useful purpose and turns into a parasite, it's time for it to be exterminated.
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Anonymous Coward, 17 Sep 2015 @ 9:56am

Re:
At least in Austria, such a system did not exist, according to this article.
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Blackfiredragon13 (profile), 17 Sep 2015 @ 10:17am

A comment section not littered with trolls. The rarity.
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andy, 17 Sep 2015 @ 10:50am

Yeahhhh
Maybe someone needs to sue the government asking what the consumer is getting for the tax, every tax must provide at least some type of service and the only thing I can think is to decriminalise sharing of any files online as we have paid to cover the costs to do so.
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Anonymous Coward, 17 Sep 2015 @ 10:58am

Re: Reimbursement system
No, there is a system for reimbursement, but few people are aware that it exists. The ruling notes that there have only been 1658 claims for reimbursement in the years 2007-2012. Austro Mechana has also admitted that they usally reject claims made by private citizens, they believe that only corporations qualify for reimbursement.

Also note that this is actually not about copyright infringment, the levy is only supposed to apply to legal copies made under the private copy exemption, not illegal copies. In theory you could demand reimbursement on the grounds that you only use your hard disk for illegal downloads and don't have a single legal copy on there.
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Anonymous Coward, 17 Sep 2015 @ 11:01am

Re: Re: type: ausrian
Now fix it again, it's the Vienna Commercial Court. It's right there in the headline of article you cribbed your story from.

I notice you've just used the one source. I hope it's accurate, you should be alright though, anyone who spells cat with a 'k' knows their way around a fact.
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Monday (profile), 17 Sep 2015 @ 11:14am

Good Job
Well written! Great post. Thanks so much.
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Sheogorath, 17 Sep 2015 @ 7:25pm

Levies have been struck down? Does that mean we'll regain our right to rip in the UK?
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Ninja (profile), 18 Sep 2015 @ 7:13am

they might well jeopardise the very existence of Austro Mechana

Add me to the crowd of those rooting for their demise.

The possibility that a future court case might force GEMA to pay back a good chunk of all the copyright levies it has received is, of course, a tantalizing prospect.

Tantalizing? TANTALIZING? We'd be deaf to the sound of simultaneous champagne bottles being popped open in Germany (and elsewhere) if it happens.
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