Private Copying | National Situations and Legal decisions

NOVEMBER 2018

Decision of the Austrian Constitutional Court - Private Copying Levies

The Austrian law had a provision capping the tariff at 6 % of the average retailers’ price for the respective storage media (Section 42b para. 4 No. 8 Austrian Copyright Act). This provision was attacked by AUME due to a civil proceeding against an entrepreneur who refused to pay because of the infringement of that cap by some of AUME tariffs (CD-R mostly). Together with the appeal against the verdict of the first instance by said entrepreneur, which proceeding was won by the Austrian society,  AUME could lodge an appeal with the Constitutional Court, which is a rather young proceeding and has been introduced in our law only a few years ago.

The Constitutional Court, in a ruling of November 29, 2018, of which AUME were notified on December 19, 2018 abolished the said provision with immediate effect.

The verdict very clearly states that such fixed cap infringes the meaning of Art. 5 para. 2 lit. b of the InfoSoc-Dir.

FEBRUARY 2017

Decision of the Austrian Supreme Court - AMAZON Case (4Ob 62/16w) - Excerpts - Reasoning

JULY 2012

Private Copying Developments in the Netherlands, Italy and Spain  

In the Netherlands, after years of litigation the Dutch collecting society for perfoming artists has obtained an important victory. The Dutch state is sentenced to pay full damages to rights holders for failing to determine levies on devices like mp3 players and hard disk recorders. The verdict refers to the Padawan and Opus decisions and confirms the obligation of the State to ensure fair compensation for acts of private copying. 

In Italy, the Administrative Tribunal has decided in March last, to reject the claim of Samsung, Nokia, Apple, Ericsson, Hewlett Packard, Wind, Fastweb and Telecom Italy filed against the Decree of the Minister of Culture of December 30, 2009, containing a revision of the tariff for private copy levy.

Finally in Spain,  as a follow-up to the Padawan decision,  the government proposed to pay a subvention to right owners in order to compensate the disappearance of the remuneration for private copying, unfortunately the amount of the subvention is 17 times lower than the effective collection for Private Remuneration.

Download the presentations addressed by SGAE, SIAE and Stichting de Thuiskopie during a BIEM Webconference (9 July 2012)

MAY 2011

The OPUS Case involving the Dutch Society Stichting de Thuiskopie vs a German e-seller Opus Supplies GMBH which contrary to the Padawan case concerned intra-community sales of goods subject to private copying levies. Hester Wijminga, Manager of Stichting de Thuiskopie kindly accepted to present the ins and outs of this case, particularly its submission to the European Union Court of Justice during a BIEM Webconference held in May 2011.

OCTOBER 2010

Padawan ECJ Decision

The ECJ ruling came in a Spanish case, involving a company called Padawan, which markets CD, DVD and MP3 devices and which refused to make payments to SGAE.   The judgement  effectively outlawing the indiscriminate application of copyright levies to devices used for business purposes.

NOVEMBER 2007

Economic Analysis of Private Copy Remuneration
The study commissioned by Gesac to the Spanish consulting firm ECONLAW describes the economic rationale of Private copying remuneration Schemes. The report shows Private Copy remuneration have a sound economic justification and generate positive incentives to the creation of Intellectual Property Rights (IPR) protected works.

Extract from GESAC's press release dated November 8, 2007:
Private copying remuneration systems: Copyright levies give the fairest deal to artists, consumers and ICT industry, Spanish study shows

Véronique Desbrosses, GESAC’s Secretary General, said, "This is the most comprehensive and objective analysis of private copying remuneration to date. It shows that current systems are the best available way of compensating rightholders for private copying of their work. The report confirms that they are the only option that adequately takes into account the interests of authors, composers, consumers and the ICT industry."

ECONLAW concludes that Digital Rights Management (DRM) makes a "very poor substitute", not least because it runs against consumer interests. The study highlights the technical flaws, higher costs and limited penetration that make current DRM technologies an unattractive alternative to the levy systems.

For futher information see also www.gesac.org/