Reproduction behind closed doors

Last week the Advocate General’s opinion was delivered on Case C-467/08, SGAE v Padawan. The ECJ has been asked to clarify private copying levies.

The Copyright Directive provides, in Article 5(2)(b), for an optional exception for private non-commercial copying, on the condition that the rightholders receive fair compensation. All European countries with the exception of the UK and Ireland now have a private copying exception – in most cases compensating rightholders by a levy on companies manufacturing, importing or distributing copying machines and media (e.g. blank CDs, video recorders, MP3 players, computers and printers). In 2004 copyright levies raised €568m in the EU.

The Advocate General was of the view that a levy should not be indiscriminately applied – it’s ‘justified only where it may be presumed that the digital reproduction equipment, devices and media are to be used for private copying’. She said that it was OK for such presumed use to be estimated. Specifically in this case equipment used by businesses would not be for private non-commercial use, so a private-copying exception levy was not applicable.

The opinion would appear to introduce a new grey area: when is a levy being applied indiscriminately? If this opinion is followed by the ECJ, member states could exercise their discrimination differently, removing different sales from the imposition of the levy. This would result in less consistency of levies across Europe, adding to the existing intractable problem that member states have wildly differing levies, imposed on different products and different charges. An iPod classic costs €229 in Germany (where the levy is €2.56), €259 in France (€20 levy) but only €217.65 in Luxembourg (no levy).

Private copying is such a complicated and unmanageable thing – didn’t a levy seem like such an elegant, simple solution?