First of all, let me upfront state that I’m deeply honored by having you reading and commenting my posts… I’m dying to read your upcoming ones…

As you already said yourself in your second remark, Directive 2001/29/EC is, in fact, connected with the issue we’re discussing here… But not just loosely connected, but directly and explictly…

In fact the latest reform of the Spanish Intellectual Property Law from two weeks ago, explicitly cites it in it’s preamble…

Please consider the first part of the post as sort of an introduction to the matter.

My whole point was to unveil the web of interests created around the concept of ‘fair’ remuneration for private copying… There is a whole industry making an extremely profitable living from what should be an exceptional mechanism for what it should be a marginal matter…

If you follow the provided link you’ll see that it has become so evident that the commission is already denouncing the inherent lack of transparency of the mechanism as well as trying to establish some guidelines on how to handle the issue from here on.

What have we done in Spain? Further delve and promote this toxic and marketplace altering system…

Spain is different? You bet!

All the best, TFS

I update the information I added yesterday, as I was not totally right.

In fact, article 5.2.b of the Directive 2001/29/EC permits (it does not oblige to do it) to the Member States to establish an exception for “private copying” (“(b) in respect of reproductions on any medium made by a natural person for private use and for ends that are neither directly nor indirectly commercial, on condition that the rightholders receive fair compensation which takes account of the application or non-application of technological measures referred to in Article 6 to the work or subject-matter concerned;”). But it condictions the establishment of the exception to the implementation of a system that would provide a fair remuneration to rightholders.

However, the Information Society Copyright Directive gives Member States all the flexibility in determining the form of any system of fair compensation for right holders even if recital 35 of the Preambule of the said Directive gives Member States little guidance on the scope of what constitutes “fair remuneration”:
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However, already in 2004 the European Commission was very worry as to the form that this system was introduced in the different Member States 1º) because they are great differences among the different MS; 2º) because she is not sure that due account to the, so called, DRM is taken into account by Member States as providing an alternative way of compensating right-holders, and 3º) because there is a lack of transparency about the application, collection and distribution of the copyright levies to right-holders.

So the Commission decided to make a questionnaire that it was sent to all Member States as to know more about the systems they were applying in their respective countries and their opinion about the need of an European action to harmonize this topic. Replies from MS arrived by March 2005 but, after that date, the Commission asked them to update the information. The mayority of the updated replies from MS arrived to the Commission in January 2006 and they are now published in the web of DG Internal Market.

The Commission has been doing an additional follow-up consultation to stakeholders that began 6 June and has finished July the 14th. The Commision has not yet published neither the observations of the stakeholders nor its conclusion about what she is going to do about this matter.

So we will have to wait to see if the Commission proposes action -that could be, for instance, the establishment of a harmonized method for all MS where due account would be taken of the alternative remuneration that means DRM- or if, on the contrary, the Commission decides to wait some more time until DRMs will be completely established.

My best regards.
María López-Contreras González

Let me add some more facts to your brilliant comment on copyright levies.

First, the provisions you refer to about Directive 2001/29/EC have no link, in fact, with the systems of compensatory remuneration that exist in Spain and other EU countries but not in all of them. In the cases you include in your note -those were the Community directive establishes “on the condition that the rightholder receive a fair remuneration”- the EU is asking (an obligation) for a contract between the collective society “representing” rightholders and the users, where the last ones would pay a fair remuneration to the first ones (ECJ Judgment Sena/Nos 2003 explains what “fair remuneration” means).

Compensatory levies systems are established in some Member States -I repeat, not all- for a kind of use (private copying) that, both at the international and at European Union level, it is yet considered that “remuneration” is not due.

Second, as you have said, at least in Spain -and I believe that in any European country where there is an alike system- the money that has been collected from this levy imposed to producers and distributors (that, at the end, the consumer pays) goes to all collective societies. After, they distribute this money among themselves, accordingly with the terms of an agreement that the Spanish law obliges them to adopt. It goes to the collective societies of all the different categories of rightholders (SGAE, AGEDI, EGEDA, AISGE/AIE, CEDRO, DAMA, etc) except to broadcasters that -even being considered rightholders in all, international, european and national, laws- they have never been considered beneficiaries of this levy (nobody knows why).

As you have point out, they get that remuneration that does not really belong to them but to their members (or not members) because the last ones are the real rightholders -not the collective societies- so, in principle, collective societies have the obligation to distribute that remuneration among the “true” rightholders.

Collective societies have, at least, in Spain what is called “universal representation” so, when they negotiated with users or they get this levy, they get it for “all” the works of “all” the rightholders of its category of the “whole world”; so SGAE, for instance, is paid for all the works of all musical authors and audiovisual scripts authors of the world, being SGAE members or not.

But, the truth is quite different: if, after passing a period of 5 years, a rightholder has not requested its remuneration (from the levy or from the remuneration paid by broadcasters or other users, for instance) to the collective society, he losses his right and this money pass automatically to be the “property” of the collective societies. Imagine how many authors from all over the world (that are not members of SGAE, for instance) do not ask for that remuneration before the prescription time-limit. Thousands, millions? Money of thousands or millions of rightholders that, at the end, is for the collective society itself.!! The business is perfect!!

Third, now that DRM can be, at least technically, included within the works, I don’t see how the system is going to distinguish, when distributing the copyright levy, among those right holders that have not used a DRM system -so their works can be “privately copied”- and those that have introduce it, so private copying is not possible anymore.

As the levy is imposed, as you said, to the “means” that permit copying and after it is distributed among collective societies and, from them, supposedly, to right holders ¿how they are going to distinguish between those right holders that have not included DRM with their works -so they can be private copied- from those that have included DRM, so they do not have right to that remuneration anymore? It seems they are not going to do it, so they all will receive part of the “cake”, even if they don’t merit it.

My best regards,

María López-Contreras González

Last saturday (July 8th.) the latest reform to the Spanish Intellectual Property Law was actually published (Law 23/2006), and came into effect.

Measuring this latest reform against the 2006 European Commission’s roadmap, imho I think it would be fair to say that not only an opportunity to align focus and objectives with the Commission has been wasted but that a huge step in the opposite direction has been taken.

Copyright levies have been boosted in every conceivable way, their scope as well having been wildly augmented.

All the best, TFS