Update (25/05/2015): La Cour de justice a encore récemment rendu une importante décision en matière de cartes mémoires pour des smartphones (décision Copydan du 5 mars 2015).
October, 1st 2013, I’ve been to the IP Forum related to the private copying levies.
Please find here my report.
Chaired by Marielle Gallo, MEP (French EPP)
– Keynote: Antonio Vitorino, former EU Commissioner for Justice and Internal Affair
– Irena Bednarich, DIGITALEUROPE (manufacturers)
– Robert Staats, VG Wort, Vice-President of SAA
– Kostas Rossoglou, BEUC (European condumers organisations)
– David El Sayegh, Secretary General SACEM (music CMO France)
Subject : The future of private copying following the report of Antonio Vitorino
Gallo began the meeting by asking several questions:
– Should private copying levy ( PCL ) exist today in the cloud environment?
– Should it be replaced by something else that respond adequately to the needs of creators and demands of consumers?
– Should the damage for PC be determined at EU level ? Should EU list the products subject to PCL?
– Where shall the levy be collected? When first put on the market or where consumer resides?
– What happens for cross-border sales ?
– What is the level of transparency of PCL? Should they be displayed on the products?
– What about the relationship with the technical protection measures ?
Briefly summarizes his report. He acknowledges that his mission was a failure in the sense that it failed to meet the views of industry and rightholders. He could not establish a minimum of level playing field .
We are moving from a system of ownership of content to an access system. There is a paradigm shift.
Can we replace the PCL by a contractual arrangement so that the creator will always be the weaker party to the contract? He recognized the need to act on the contractual side.
One of his recommendations was to establish a common list of equipment and materials that would be subject to the PCL and a European method for defining the harm .
He acknowledged that differences in PCL in the different EU countries came from their cultural and historical differences .
He admitted (finally) that bringing the level of perception at the retail level may provide too much red tape . He said that levy should be paid at end user’s level, ie the country of destination of the product (shift the responsibility to the retailer), but this could be burdensome. He there recommended to better analyse how to implement better solutions regarding exemptions or refunds.
He insisted that the parties must absolutely come to a compromise soon as the system is under threat.
What compromise? He didn’t say. He said that rightholders should already accept that the system must evolve, some refuse to acknowledge .
“Without content authors, there will be no business at all. But rightholders must understand that their position cannot stay. We need rightholders. We cannot live with an intellectual production only coming from overseas.” And then: “What I said in my recommendations is not absolutely true and not absolutely false”
MEP Engstrom (pirate party) asked why music hasn’t died in the UK despite the lack of PCL.
Obvious supporter of PCL and considers that it works well in France . He pointed out that 25% of the PCL is used to finance social and cultural activities (such as music festivals). He pointed out that if contractualizes PCL, agreements will end up between the U.S. and major producers. And that these agreements will be concluded in total opacity . PCL was born in Germany in the 60s and has always evolved ( even in France in 2011 ) . It is therefore wrong to say that it is an archaic system that rightholders insist in keeping. Any new rate in France is based on user studies and is decided by a committee where the beneficiaries are not the majority. PCL therefore takes into account the uses and new technologies.
Said that Reprobel and Belgian tariffs are high . She was very negative about the system and supported Vitorino’s report. Kurt Van Damme Reprobel present in the room, backed in the questions and answered DigitalEurope . He reminded her that the industrial system is based on an inexpensive selling devices ( since the copying fee is obviously disproportionate audit price-) but the manufacturers are catching on sales of ink cartridges. For GE the solution should be a monetisation system based on exclusive rights.
He recalled that it would be technically impossible to pass the collection system from importers to retailers. Because there is are many retailers in Germany. And this while VG WORT entered into sectoral agreements that work very well and for a long time . According to him, to prevent the PCL to be paid twice it is better to improve reimbursement systems and exemption.
Protested at the questions asked to him by Gallo on the high price of smart phone and whether he supported that. He asked for a debate on defining the harm and the economic loss. He was very angry.
Engstrom asked why he should have to contribute to music festivals just because he had a phone that he only used for phoning and not for copying things.
Overall impression: The debate was quite dominated by rightholders’s views and Marielle Gallo seems to share their arguments. She promised that the directive on management companies will be adopted very soon, at least before the end of the legislature . The next Forum will be “an unknown IP issue and will take place at a yet undetermined date”.
By Axel Beelen