EU-rapport over thuiskopie: heffingen vooralsnog handhaven, maar systeem verbeteren

Recommendations Resulting from the Mediation on Private copying and reprography levies (António Vitorino, Brussels, 31 January 2013).

Vandaag gepubliceerd: Het mediationrapport van António Vitorino over de verschillen tussen de thuiskopiestelsels van de EU-lidstaten en de gevolgen daarvan voor de interne markt. Vitorino onderzocht onderzoekt eveneens de thuiskopie-uitzondering die op dit moment bestaat. Past die in haar huidige vorm nog wel binnen de digitale vormgeving?  Geen drastische maatregelen, maar wel ruimte voor verbeteringen (simpeler en duidelijker):

“It seems to me, however, that the alternatives that were put forward have not been sufficiently worked out in detail yet, and therefore do not justify the "phasing out" of hardware based levies in the immediate future; such a "big-bang" does not seem advisable.”

These are the core elements of my recommendations:

I) In order to favor the development of new and innovative business models in the digital single market, based on licensing agreements between service providers and rightholders, I recommend:

- Clarifying that copies that are made by end users for private purposes in the context of a service that has been licensed by rightholders do not cause any harm that would require additional remuneration in the form of private copying levies.

II) In order to simplify the functioning of the levy systems and ensure the free movement of goods and services in the Internal Market, I recommend that:

-  Levies should be collected in cross-border transactions in the Member State in which the final customer resides;

- The liability for paying levies should be shifted from the manufacturer's or importer's level to the retailer's level while simplifying the levy tariff system and obliging manufacturers and importers to inform collecting societies about their transactions concerning goods subject to a levy

- Or alternatively, clear and predictable ex ante exemption schemes should be established;
- In the field of reprography, more emphasis should be placed on operator levies than on hardware based levies;

- Levies should be made visible for the final customer; and

- More coherence with regard to the process of setting levies should be ensured by

- Defining 'harm' uniformly across the EU as the value consumers attach to the additional copies in question (lost profit); and

- Providing a procedural framework that would reduce complexity, guarantee objectiveness and ensure the observance of strict time-limits

"(...) Most stakeholders were very constructive during the mediation process. Nonetheless, the interests at stake are conflicting and often prevented stakeholders from exploring common ground. The current state of affairs, with important CJEU rulings on this subject pending and the start of discussions in some Member States on possible alternatives to the device based levy system, also conditioned discussions to some extent. Although stakeholders were not yet able to bring their views closer on the most contentious issues, my aim remains to facilitate and advance future discussions as much as possible. In my recommendations, I will therefore try to build upon the issues that were raised in the mediation process by the different stakeholders, even if these issues were often presented from opposite angles. Drawing the divergent positions closer will ultimately depend on the willingness of all stakeholders to commit themselves to finding workable compromise solutions.

In addition to what I learned through the mediation itself, I analysed the relevant information that resulted from previous consultations, as well as the existing case law of the CJEU. I think that certain issues, especially those related to the setting and payment of levies in cross border transactions, can be settled on the basis of that case law. In particular the Court´s rulings in Cases C-467/08 (Padawan vs SGAE) and C-462/09 (Stichting de Thuiskopie vs Opus)
contribute significantly to the clarification of many of the debated issues. I am convinced that the best way forward is to build on this case law. I will address the consequences of these judgments in detail, in the relevant parts of my recommendations.

Moreover, in an unprecedented number of new cases (Cases C-457/11 – C-460/11, VG Wort vs Kyocera Mita et al.; Case C-521/11, Austro Mechana vs Amazon; Case C-314/12, Constantin Filmverleih vs UPC Telekabel; Case C-463/12, Copydan Båndkopi vs Nokia and Case C-435/12 ACI Adam et al. vs Stichting de Thuiskopie) many other important questions on private copying and reprography levies have been referred to the Court. I expect the answers of the CJEU to these questions to provide further guidance on some essential issues, as I will mention later on in my recommendations.

Some stakeholders have put forward ideas to replace the current hardware based levy systems with other forms of fair compensation. It seems to me, however, that the alternatives that were put forward have not been sufficiently worked out in detail yet, and therefore do not justify the "phasing out" of hardware based levies in the immediate future; such a "big-bang" does not seem advisable. Some of these alternatives may also not be in conformity with the applicable legal framework. In particular, I think that the link between the persons causing the harm and benefitting from the exception and the persons financing a system of fair compensation should not be severed. That being said, I do believe that some of these alternatives deserve further consideration.

Although the remit of my mediation did not foresee a consultation with Member States, I think that such discussions will be needed to find a sustainable and future-proof solution to the problems identified in my recommendations. Stakeholders should nonetheless remain involved in the process, and assume their responsibility for finding workable compromise solutions. It is also essential to take proper account of current and evolving market developments. While it may be too early to determine which business models will be preferred by consumers in the long term, many stakeholders expect a shift from ownership based to access based models. The latter, combined with widespread and ubiquitous Internet access, have the potential of significantly decreasing the overall amount of copying undertaken by end users and, as a consequence, also the amount of levies required to compensate for acts of private copying. Moreover, existing and new online services should normally be based on licensing agreements and are often supported by technical measures, allowing rightholders to be remunerated directly for all forms of consumption of their creative content. In cases where rightholders are remunerated via licensing agreements, for the use (including the copying, as the case may be) of their works, it does not seem justified to make consumers pay a second time, in the form of levies. These and any other forms of double payment should be avoided. In my view, they are to the detriment not only of consumers but also of the functioning of copyright as a system to incentivise and reward creativity and investment. I will address these issues in the first part of my recommendations and indicate what a possible adjustment of the system to take account of new services and consumption patterns could look like.

While it is true that the cases of private copying requiring compensation by means of levies are, on account of new business models and changing content consumption patterns, likely to decline, they will not vanish from one day to the next. Therefore, levy systems will, in my view, remain relevant in the immediate future. In these circumstances, the most pressing objective is to ensure the greatest possible consistency, effectiveness and legitimacy of the levy systems that are in place today. Accordingly, the second part of my recommendations should be viewed as a critical analysis of these systems, providing targeted solutions to identified cross-border issues. Although most of my recommendations do not distinguish between private copying and reprography levies, it is important to take into account the specificities of the latter. I will indicate when these specificities require a different approach.

The evolution of the copyright system and its adaptation to the XXIst century is not an easy process. Copyright remains an essential element of our society and our economy. In this connection, I have noted with satisfaction that the Commission has recently adopted a Communication on Content in the Digital Single Market, which aims to ensure that copyright and copyright-related practices, such as licensing, stay fit for purpose and provide for effective solutions in this new digital context."

Lees het volledige rapport hier.