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."

....

"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.

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