The fee is only applicable to storage devices purchased by individuals, but cannot be charged to companies and professionals.
The Court of Justice of the European Union has just declared the digital levy legal for reproduction devices and media purchased by individuals, but not for those acquired by companies and professionals for purposes other than private copying.
Luxembourg considers that, under the 2001 Directive governing copyright and other assets in the information society, the exclusive right to reproduce sound, visual or audiovisual material lies with authors, performers and producers, although Member States may authorise the making of private copies provided that rightholders receive 'fair compensation', which is the one that must contribute to their receiving adequate remuneration for the use of their protected works or other subject-matter.
The Spanish legislation transposing the Directive allows the reproduction of works already disclosed when carried out by a natural person for private use from works to which he has lawfully accessed. In this context, manufacturers, importers or distributors must pay collective management organisations for intellectual property rights a single compensation, determined for each means of reproduction, in the form of a "private copying levy".
The SGAE and PADAWAN
In this context, the Sociedad General de Autores y Editores (SGAE), an organisation for the collective management of intellectual property rights in Spain, claimed from PADAWAN, which marketed CD-R, CD-RW, DVD-R and MP3 devices, the 'private copying fee' corresponding to digital media marketed between 2002 and 2004. The company then opposed the payment on the grounds that the fee does not discriminate between the private, professional or commercial use to which the media it sells are intended, although the Spanish Justice sentenced it to pay 16,759 euros in concept of this canon.
The company brought an action before the Audiencia Provincial de Barcelona, which then asked the Luxembourg Court about the criteria to be taken into account in determining the amount and system for collecting 'fair compensation'.
"Fair compensation"
The European Court, in its judgment today, states that 'fair compensation' must be regarded as the consideration for the damage suffered by the author following the unauthorised reproduction of his protected work, so that the damage must constitute the basic criterion for calculating its amount and it is, in principle, the person who makes the reproduction for private use who must make good the damage, financing the compensation to be paid to the holder.
Finally, the Court considers that a system of 'private copying levy' is compatible with the 'fair balance' only where the reproduction equipment, apparatus and media in question can be used for private copying and are therefore likely to cause harm to the authors of the protected works, and not where they are purchased by persons other than natural persons, or what is the same, legal persons, for purposes manifestly unrelated to private copying.
It should be recalled that the Court of Luxembourg has not today resolved the dispute that is being settled in Spain but responds to the reference for a preliminary ruling made by the Provincial Court of Barcelona.
Source: ABC.es
