We've covered copyright levies (a.k.a., "you must be a pirate/thief" taxes) several times here at Techdirt, with a majority of them pertaining to the cassette tapes of the digital world: blank CDs/DVDs, hard drives, removable storage, cell phones, internet connections, etc. The theory is that the only reason anyone buys storage of any kind is to have some place to put all their pirated goods. Hence, they must pay a "tax" to compensate artists for all the creative works they've ripped off.
This sort of taxation is stupid, but governments often fall for it because it's obvious that, yes, some people do store their pirated goods this way. That a large majority of people don't doesn't seem to matter. They, too, must pay a tax for the overall good of the creative world -- a "world" that is basically a bunch of industry groups and collection societies when you get right down to it. They're the ones pushing these levies, and they're the ones that derive the most benefit from them.
But Reprobel, a Belgian collection society, is currently going after Hewlett-Packard's Belgian wing, claiming that the company should be forced to pay a levy on the sale of… all-in-one printers.
Reprobel, a collecting society, had asked HPB to pay a levy for the sale of multifunction printers. Such a levy is due as fair compensation to authors for the copying of their work using the devices. Since Reprobel and HPB did not reach an agreement on the amount to be paid, HPB sued Reprobel so as to obtain legal certainty on the royalties due.
Reprobel's theory is more than a bit shaky. It assumes multifunction printers are used to copy hard copy books (and convert them to digital/physical form). Reprobel doesn't explicitly spell out the "harm" it is seeking compensation for (at least not in this article by Peter L'Ecuse), but it's assumed that copying and printing both theoretically aid in the pirating of printed material.
What's more surprising than this leap of logic is the fact that such a levy is already being collected.
Under Belgian law, the fixed part of the levy is paid by manufacturers/importers (Article XI.235 of the Code of Economic Law and is based on potential harm caused to the author. According to the Advocate General, such a levy is proportionate and the criteria used to determine the levy (i.e., the maximum speed for copying in black and white) objectively reflect the ability of the equipment to potentially prejudice authors.
So, the Belgian courts have already found in favor of these sketchy assumptions and have applied them to sales of standalone copiers. Reprobel is seeking the application of this levy to printers that also
make copies. In addition, it's seeking another
levy, supposedly based on "actual harm." (The current levy is based on "potential harm.")
The Belgian Advocate General is at least questioning a few of Reprobel's assertions.
[T]he Advocate General pointed out that it is likely that a private person using a multifunctional printer for his own personal use will cause less harm to authors than printers of the same speed used in libraries or copy shops. The Advocate General therefore believed that the fair balance would be better guaranteed if criteria other than the maximum speed were also taken into account.
Of course, the Advocate General's questioning begins with a questionable assumption: that printers/copiers are used to facilitate enough infringement that a levy is somehow justified. If Reprobel's worry is the mass copying of physical books, then it has had several years to gather data that supports its assertions about copyright infringement. Nothing in this report or the comments by the Advocate General suggest it has presented anything of the sort.
Using an all-in-one printer to make infringing copies of digital books is about the least efficient form of piracy imaginable. Using off-the-shelf all-in-ones to scan books into PDF form for distribution across the web is only slightly more efficient. And even if it's the latter form that concerns Reprobel more, there's evidence out there that suggests there's very little demand for pirated books
Just 1% of UK internet users aged 12 and over read “at least some” ebooks illegally between March and May 2015, according to the Intellectual Property Office’s study into the extent of online copyright infringement in the UK. This compares favourably to other forms of entertainment, with 9% accessing some of their music illegally, 7% television programmes, 6% films, and 2% computer software and video games.
When researchers looked at “all internet users who consumed content online over the three-month period,” (rather than all internet users over 12), they found that 31% accessed at least one item illegally. Readers, however, still had the lowest incidence of illegal access, at 11%, compared to 25% for people watching films and 26% for people listening to music.
“More ebook consumers paid for some content (69%) and for all of their content (47%) than consumers of any other content type”, the survey found.
Reprobel appears to be interested in collecting fees (this is honestly where this sentence should end, but…) on the sort of infringement that went out of vogue well before all-in-one printers became mainstream.
The Advocate General does raise a couple of good points during its consideration of Reprobel's plea, despite giving far too much credence to its assertions.
[T]he Advocate General expressed doubts as to the admissibility of the dual fixed and proportionate levy. Indeed, given that the proportionate levy paid by the user is deemed to compensate for the actual harm, the Advocate General sees no reason to add a fixed levy to be paid by the manufacturer/importer to compensate for a potential harm caused by the same equipment.
If a proportionate levy is granted, the AG suggests that any compensation demanded by Reprobel for actual
use should have any levies collected for potential
use deducted. This will prevent Reprobel from doing too much double-dipping, even though the proposed levy is a double-dip in and of itself.
Furthermore, the Advocate General reminds Reprobel that not all copies of copyrighted content are infringing.
In particular, the Advocate General held that the system does not distinguish between copies of works that fall under the fair compensation scheme and works for which no levy is due because of an exemption foreseen by the InfoSoc Directive (e.g. sheet music copies can be made without any fair compensation being due).
Beyond the Belgian version of "fair use," there's the question of how Reprobel expects to apply a proportionate levy based on actual usage -- at least not one anyone's going to agree with. What percentage of actual usage is it going to automatically
assume is infringing? And how is it going to collect this data?
The Advocate General says the fee could change depending on the end user's level of cooperation with Reprobel in the assessment of the levy. This would basically turn Reprobel into the BMI
of the printed world -- an entity that demands fees from businesses utilizing multifunction printers. It would give it the power to basically charge a licensing fee for printer/scanner/copier operation. The AG's echoing of Reprobel's assertion that every
sold multifunction printer will generate some sort of actual harm points towards Reprobel being granted this power. If this goes Reprobel's way, there will no need for it to prove actual harm. It will be free to collect on its assumptions.