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Advocate General tackles copyright levy questions

The CJEU’s Advocate General has advised the EU’s top court how to balance the rights of individuals to make private copies and the rights of IP owners to receive compensation in an opinion on copyright levies

Advocate General Eleanor Sharpston yesterday issued her opinion in a dispute between German collecting society VG Wort and a group of companies that manufacture printers and computers.

European law requires member states give authors the right to allow or prevent reproduction of their works but says that they can also grant exceptions or limitations to that right. In particular, exceptions can be made in respect of “reproductions on paper or any similar medium, effected by the use of any kind of photographic technique or by some other process having similar effects” and “reproductions on any medium made by a natural person for private use and for ends that are neither directly nor indirectly commercial”, as long as IP owners are compensated fairly. This is usually done by way of a copyright levy on technology that facilitates reproduction.

Germany’s Bundesgerichtshof referred the dispute to the Court of Justice of the EU and asked whether a copyright levy should be charged on printers or personal computers that can only make reproductions when they are linked to other devices, such as scanners, which might themselves be subject to the same charge. It also queried the role of the levy in cases where the rights owner is able to apply technological measures to prevent or restrict copying.

Sharpston recommended the Court rule that member states must extend fair compensation to cases where the reproduction involves the use of digital technology in an intermediate stage, as long as the copying is done by one person or as a single operation.

She said that when the copying is done using a series of devices, such as a computer, scanner and printer, national courts should consider whether it would be a fair balance of the rights of IP owners and the rights of users to apply the levy to a chain of devices. Member states should be able to use their discretion to decide whether to grant or withhold compensation if the rights holder chooses not to use technological protection measures to protect their works from unauthorised copying.

The issue of levies is a contentious one in Europe and there is a patchwork of rules across the EU. Commission plans to harmonise the rules have stalled because of fierce disagreement between IP owners and the makers of devices that allow reproduction. In 2011, Portugal’s António Vitorino, a former European Commissioner for Justice and Home Affairs, was asked to mediate between the two sides in talks in the first half of last year as part of the Commission’s plans for legislative action on private copying levies at the EU level. That dialogue began in April.

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