The European Court of Justice
A case between HP and another company brought up the issue of levies on printers for compensating authors.
Mondaq (registration required) reported on the case in Belgium, which concluded in June, and which saw Advocate General Cruz Villalón discuss and rule on “a request for a preliminary ruling” from the Brussels Court of Appeal between HP Belgium and Reprobel, referred to as a “collecting society”. The latter had asked HP to “pay a levy for the sale of multifunction printers”, which Mondaq points out is “due as fair compensation to authors for the copying of their work using the devices”.
Reprobel and HP “did not reach an agreement on the amount to be paid”, and HP sued Reprobel “so as to obtain legal certainty on the royalties due”, with the case reaching the Brussels court, which then referred four questions to the Court of Justice of the European Union (ECJ). The case related to an EU law on “the harmonisation of certain aspects of copyright and related rights in the information society”, otherwise known as the “Infosoc Directive”.
Villalón assessed first whether the directive “allows the amount of the levy to vary” depending on the person reproducing the copy and the “commercial nature”, and found that while it “does not exclude certain persons or purposes”, it doesn’t prevent EU member states from “differentiating between such situations” based on objective analysis. He also looked into how the levy was calculated, and whether a member state can create “a system of dual fixed and proportional levies”.
In Belgium, the fixed element of the levy “is paid by manufacturers/importers […] and is based on potential harm caused to the author”, which Villalón found to be “proportionate”, and the criteria, including speed of printing, reflects “the ability of the equipment to potentially prejudice authors”. However, he also found that “it is likely” individuals using MFPs for personal use “will cause less harm to authors than printers” in libraries or print shops.
The fair balance previously mentioned “would be better guaranteed if criteria other than the maximum speed were also taken into account”, and the amount of the proportionate levy per copy “will differ depending on whether the user collaborated” with Reprobel “in determining how many copies were made by a given device during a given period of time”. National courts must “assess whether the difference in price per copy is “objectively justified and proportionate”.
Villalón believed that in light of this, there are “doubts as to the admissibility of the dual fixed and proportionate levy”, and saw “no reason to add a fixed levy” that HP would pay, recommending that “the proportionate remuneration […] should take into account the amounts that have already been paid”. With publishers in Belgium receiving “half of the levies collected”, the government said that the compensation was “compensation” and not taken from the “fair competition” paid to authors.
As a consequence, Villalón stated that “it belonged to the national court” to decide whether this compensation to publishers “does not lower the fair compensation for authors”. Finally, he stated that the collection system for the fair compensation “does not take into account copies for which no levy is due”, as it “does not distinguish between copies of works” under this and “works for which no levy is due”, using the example of sheet music copies being made “without any fair compensation being due”.