We have blogged extensively in the past regarding the enactment, judicial review and subsequent quashing of the private copying exception introduced by the Government in October 2014. For detailed
We have blogged extensively in the past regarding the enactment, judicial review and subsequent quashing of the private copying exception introduced by the Government in October 2014. For detailed background, please see our previous posts here, here and here.
The last position, back in July of this year, left us waiting to see how the Government would react to the Court rulings; what its future options were; and whether it would introduce a levy scheme. According to press reports, a spokesperson for the UK Intellectual Property Office (IPO) has indicated that it has decided to abandon the private copying exception - whether this is a temporary or permanent measure remains to be seen. But for now, the IPO appears to want to focus its efforts on the upcoming European copyright reforms.
Following the recent ruling on 12 November 2015 of the Court of Justice of the European Union (CJEU) in the Belgian Hewlett Packard v. Reprobel case, it is not surprising that the IPO has decided not to take further action at this time. The Reprobel case did not deal specifically with private copying, but the ruling discusses in some depth the issue of 'fair compensation' required by Articles 5(2)(a) (‘reprography exception’) and (b) (‘private copying exception’) of the Infosoc Directive, and any analysis concerning the criterion of harm must apply in the context of both exceptions, which partially overlap. This recent CJEU ruling provides some guidance to Member States on what they need to consider when implementing a levy scheme into national legislation.
In summary, the CJEU ruled that it is necessary to draw a distinction between the type of user who is reproducing the work, i.e. for private use and for ends that are neither directly nor indirectly commercial, and other users; since the harm suffered by rights holders in each of those situations is not identical and will determine the level of compensation owed.Schemes which would allocate a part of the fair compensation payable to rights holders to the publishers of works by authors, or recovering fair compensation from counterfeit reproductions made from unlawful sources, would be incompatible with EU Law.
Further, the CJEU held that national legislation can introduce a system which combines a lump-sum remuneration (payment made prior to the reproduction) and a proportional remuneration (payment made after the reproduction) provided that calculation of the lump-sum is not made solely by reference to the speed at which that particular device is technically capable of producing copies, and any proportional remuneration, is not varied according to whether those liable for payment cooperate in the recovery of such payment. In addition, the combined system must contain mechanisms for reimbursement where ‘overcompensation’ occurs to the detriment of particular categories of users.
Reprobel is another clear example of the complexities surrounding levy schemes and an indication as to why the Government's attempt to come to a workable solution for all parties involved has failed.
So what does this mean?
Certainly for the foreseeable future we will remain in the same position we were pre-October 2014 and post the quashing of the exception in July 2015. Most ordinary users will simply continue as they were, making personal private copies of their legally owned content (e.g. format shifting from CD’s to MP3 players, or storing tracks in a cloud service and creating multiple copies of the same download), whether they are aware or not of the illegalities. Although rights holders are well within their rights to bring infringement proceedings against anyone for personal copying or format shifting, to do so would risk them seeing alienation and a complete disconnect from their consumers; but consumers should still be warned!
Those in the technology and consumables sectors supplying media, devices and services which facilitate private copying, will no doubt welcome the fact that the Government has taken the private copying exception off the table and has no immediate plans to introduce a levy scheme. However, they shouldn’t get too comfortable, especially in light of the fact that the European Commission has recognised the clear need to ensure no single market issues arise from different copying levies being implemented by different Member States, as indicated by the recent Communication leak on its Digital Single Market (DSM) vision: "Towards a modern, more European Copyright Framework" (click here for related post).
The last position, back in July of this year, left us waiting to see how the Government would react to the Court rulings; what its future options were; and whether it would introduce a levy scheme. According to press reports, a spokesperson for the UK Intellectual Property Office (IPO) has indicated that it has decided to abandon the private copying exception - whether this is a temporary or permanent measure remains to be seen. But for now, the IPO appears to want to focus its efforts on the upcoming European copyright reforms.
Following the recent ruling on 12 November 2015 of the Court of Justice of the European Union (CJEU) in the Belgian Hewlett Packard v. Reprobel case, it is not surprising that the IPO has decided not to take further action at this time. The Reprobel case did not deal specifically with private copying, but the ruling discusses in some depth the issue of 'fair compensation' required by Articles 5(2)(a) (‘reprography exception’) and (b) (‘private copying exception’) of the Infosoc Directive, and any analysis concerning the criterion of harm must apply in the context of both exceptions, which partially overlap. This recent CJEU ruling provides some guidance to Member States on what they need to consider when implementing a levy scheme into national legislation.
In summary, the CJEU ruled that it is necessary to draw a distinction between the type of user who is reproducing the work, i.e. for private use and for ends that are neither directly nor indirectly commercial, and other users; since the harm suffered by rights holders in each of those situations is not identical and will determine the level of compensation owed.Schemes which would allocate a part of the fair compensation payable to rights holders to the publishers of works by authors, or recovering fair compensation from counterfeit reproductions made from unlawful sources, would be incompatible with EU Law.
Further, the CJEU held that national legislation can introduce a system which combines a lump-sum remuneration (payment made prior to the reproduction) and a proportional remuneration (payment made after the reproduction) provided that calculation of the lump-sum is not made solely by reference to the speed at which that particular device is technically capable of producing copies, and any proportional remuneration, is not varied according to whether those liable for payment cooperate in the recovery of such payment. In addition, the combined system must contain mechanisms for reimbursement where ‘overcompensation’ occurs to the detriment of particular categories of users.
Reprobel is another clear example of the complexities surrounding levy schemes and an indication as to why the Government's attempt to come to a workable solution for all parties involved has failed.
So what does this mean?
Certainly for the foreseeable future we will remain in the same position we were pre-October 2014 and post the quashing of the exception in July 2015. Most ordinary users will simply continue as they were, making personal private copies of their legally owned content (e.g. format shifting from CD’s to MP3 players, or storing tracks in a cloud service and creating multiple copies of the same download), whether they are aware or not of the illegalities. Although rights holders are well within their rights to bring infringement proceedings against anyone for personal copying or format shifting, to do so would risk them seeing alienation and a complete disconnect from their consumers; but consumers should still be warned!
Those in the technology and consumables sectors supplying media, devices and services which facilitate private copying, will no doubt welcome the fact that the Government has taken the private copying exception off the table and has no immediate plans to introduce a levy scheme. However, they shouldn’t get too comfortable, especially in light of the fact that the European Commission has recognised the clear need to ensure no single market issues arise from different copying levies being implemented by different Member States, as indicated by the recent Communication leak on its Digital Single Market (DSM) vision: "Towards a modern, more European Copyright Framework" (click here for related post).