This article is also available in:
Deutsch: EuGH: Generalanwältin will Beschränkungen bei Abgaben auf Privatkopi...
Verica Trstenjak, Advocate General at the EU Court of Justice, believes the levy on private copies imposed on digital equipment, devices and media should be limited to cases "where it may be presumed that they are to be used for private copying".
The European Directive on copyright and related rights in the information society gives reproduction rights for audio, visual and audio-visual material to authors, performers and producers, but lets the Member States allow private copying, provided there is a 'fair compensation' for rightholders.
Spain has decided to allow the reproduction for private use of works which have already been circulated, without the rightholders' permission and has provided for a lump-sum compensation by means of a levy to be paid by manufacturers, importers or retailers to intellectual property rights management societies on private copies, applied indiscriminately to digital reproduction equipment, devices and media. In Trstenjak's opinion, such a levy in favour of authors, artists and producers may not be applied indiscriminately to companies and professional persons who acquire equipment and data media for other purposes.
The question arose as SGAE, a Spanish collective society, sued PADAWAN, a company marketing electronic storage media such as CD-Rs, CD-RWs, DVD-Rs and MP3 players. SGAE claimed the payment of 16 760 euro as compensation for private copying related to the storage media marketed between September 2002 and September 2004 by the company. The appeal to the case was brought in front of the Audiencia Provincial de Barcelona which had to consider whether the Spanish levy rule was compatible with the European directive and asked ECJ on how the "fair compensation" required by the directive should be organised. The decision of the Spanish court and therefore the output of SGAE case will depend on ECJ's answer.
According to the General Advocate, although the concept of "fair compensation" used in the directive should be interpreted uniformly in all the Member States, each Member State may determine the most appropriate criteria for ensuring compliance with the directive concept. Irrespective of the system used by each Member State in calculating fair compensation, there is the obligation to ensure a fair balance between the rightholders affected by the private copying exception, and the persons directly or indirectly liable to pay the compensation. Therefore, in her opinion, when a Member State, such as Spain, chooses a levy on digital reproduction equipment, devices and media, there should be the presumption that the respective equipment, devices and media are to be used for making private copies and not for other purposes.
Although the Court of Justice may be influenced by the Advocate General's Opinion, this has however no binding force as the role of the Advocates General is to independently propose to the Court a legal solution to the cases for which they are responsible.
Court of Justice of the European Union - Press release no 45/10 on SGAE case
(11.05.2010)
http://curia.europa.eu/jcms/upload/docs/application/pdf/2010-05/cp1000...
Opinion of Advocat General Trstenjak on SGAE case (11.05.2010)
http://curia.europa.eu:80/jurisp/cgi-bin/form.pl?lang=EN&Submit=re...
Advocate-general limits application of private copying levy (11.05.2010)
http://www.europolitics.info/advocate-general-limits-application-of-pr...