Private copying and reprographic levies: Europe's next step?

While the various Kats are focusing on the thousand-and-one topics that rivet their attention, there are always events that escape their collective consciousness.  One such item may be that which is provided for us below by Magali Delhaye, whose eyes and ears -- which are generally pointed in the direction of Brussels -- have often been a useful supplement to the Kats' sensory apparatus.  Thanks, Magali, for the following (parenthesised comments are those of the Kats):

"António Vitorino (former European Commissioner for Justice and Home Affairs) presented his Recommendations yesterday on private copying and reprography levies to Commissioner Barnier. These Recommendations are the fruit of the mediation process on private copying and reprography levies with which he was entrusted back in November 2011. 

He recommends two main courses of action:

1.    He first proposes encouraging increased reliance on licences and contractual arrangements as the best way to ensure that right holders are properly remunerated for their creative efforts and investments [Yes of course, says this Kat, but contractual arrangements themselves on underlying law. It's difficult to license or sell any commodity if prospective licensees or purchasers can get it elsewhere at no cost]. He argues that “licensed copies should not trigger the application of levies. The opposite view would pave the way for double payments. Consumers cannot be expected to show understanding for such double payments.”[Ah yes, says Merpel, but that's not the same as being expect to make such double payments, a practice which has often attracted little ire, or indeed attention, when done discreetly and at a relatively low level].  Therefore, his recommendation on that matter is to “clarify that copies that are made by end users for private purposes in the context of a service that has been licensed by rightholders do not cause any harm that would require additional remuneration in the form of private copying levies.”

2.    He also recommends measures aimed at reconciling disparate national levy systems within the Single Market.  Although he believes that the importance of levy systems will probably decline over time, he does not think that they will be simply abolished in the near future. As a result, the rest of his recommendations focus on how to improve the functioning of levy systems from the angle of the Internal Market. His recommendations are the following:

a.  Collect levies in cross-border transactions exclusively in the Member State in which the final customer resides [that solution at least has the virtues of certainly and finality. Remember Case C-462/09 Thiuskopie v Opus?]. 

b.  Shift the liability to pay levies from the manufacturer's or importer's level to the  retailer's level while at the same time simplifying the levy tariff system; and obliging manufacturers and importers to inform collecting societies about their transactions concerning goods subject to a levy. According to the ex-Commissioner, these recommendations would solve both the problem of double payments in cross-border transactions and that of how to comply with the CJEU´s ruling in Case C-467/08 Padawan [noted by the IPKat here] of non-application of private copying levies to professional users. 

c.  When it comes reprography, he argues that more emphasis should be placed on operator levies (operator levies are defined as usually being “based on contractual agreements between collecting societies and organizations heavily engaged in reprographic copying”) compared to hardware-based levies because the former are undoubtedly preferable from an Internal Market point of view. 

d.  Make levies visible for the final customer [that'll be fun, says Merpel, who wonders whether any of the lessons drawn from the wonderful world of labelling of tobacco products might be applied here]. 

e.  Ensure more coherence with regard to the process of setting levies by defining 'harm' uniformly as the value consumers attach to additional copies in question (lost profit) [How emotive a term can be: is 'harm' the right word, within the context of creators of lawfully-created and legally protected copyright works seeking remuneration?]. 

f.  Ensure more coherence with regard to the process of setting levies by providing a procedural framework that would reduce complexity, guarantee objectiveness and ensure the observance of strict time-limits.

APPENDIX I of the Recommendations lists the stakeholders that have been involved in the mediation process on private copying and reprography levies through meetings with the Mediator and/or written submissions.

The Press Release can be found here".