European Advocate General Says Copyright Levy Should Only Be Charged If There's Actual Content Copying
from the no-universal-levy dept
The specific case involved a Spanish collection society demanding cash from a company that sells blank media -- but the company challenged the legality of the mandatory levy, noting that people weren't using the media for copying copyrighted content. The Advocate General, Verica Trstenjak, seems to agree with the blank media company:
"There is certainly a linkage between the making of a private copy and the payment which is owed. That applies regardless of how the respective Member State's system of collection for compensation for private copying is organised in detail and whether it is financed, for instance, by means of a levy," she said in her opinion. "Logically, from the viewpoint of Community law it must also be required that in any case there be a sufficiently close link between the relevant levy and the use of the abovementioned devices and storage media."Of course, she also left an out for the collection societies. Apparently, if they can show "potential" use, they may be able to get away with it:
"Where a Member State opts for a system of charging or levying in respect of digital reproduction equipment, devices and media, such a charge can be based upon [the Copyright Directive] only where it may be presumed that those equipment, devices and media are to be used for making reproductions covered by the private copying exception," she said. "Indiscriminately charging a levy, without duly taking into account the fact that, owing to factors specific to a certain line of business, the devices in question could be acquired for purposes other than private copying, may not be based on [the Directive]. It is not 'fair compensation' within the meaning of that provision," she said.
"The requirements in relation to that link should not be raised so high that ultimately the actual use of the relevant devices for the purposes of private copying would have to be required. Rather, even potential use would have to be regarded as sufficient,"However, in this particular case, she felt that the levy had been applied "indiscriminately" and without justification, as the linkage had not been shown.