Archive for category Private copying
Previously, two Commissioners have had a stab at resolving the hoo ha around private copying levies and failed. This new Commission seemed to have recognised that this was one issue where entrenched, opposing industry positions and overly differing viewpoints between the Member States made progress an unlikely result for a Commission focused on being big on big things and small on small things. Radio silence on the issue was broken on 9th December when the Copyright Communication included an action box on private copying levies.
So, what is big? Well, everything is relative of course. In real money terms, the recently published WIPO/Thuiskopie survey put private copying collections in Europe in 2014 at 731million Euros (greatly inflated by collections in Germany which increased 174% due to the conclusion of litigation). However, compared to EU GDP (13 trillion Euros) private copying levy collections are teeny tiny (0.006%). Compared to the 1 trillion Euro revenues of Digital Europe Members – the organisation leading the charge for the abolition of levies – they are a little bigger, just 0.07%. For the creative industries as a whole they are more significant, representing 0.1% of CCI Revenues (535 billion Euros). For individual creators, they can be essential in keeping them going between projects. So, is this really a big issue? How likely is agreement among the Member States?
Not very likely. The UK is resolutely against levies and compensation schemes in general (failing last year to pass a private copying exception without a compensation mechanism). By comparison, the governments of Germany and France, the two countries with the largest collections, are staunch supporters of the system. It’s difficult to see the halfway house that would satisfy everyone.
Given the political paralysis, the European Court of Justice is being relied upon to fill in the gaps. Authors’ organisations, without the deep pockets of the tech industries, are made to wait years while courts resolve disputes and clarify points of law.
So, does the Commission really want to take another bite of this cherry? SAA has always advocated further harmonisation of the system but is faced with a tech industry that is unwilling to negotiate and ready to burn huge amounts of money (more than they have to pay in levies?) in a coordinated and concerted attack on the system across Europe in national legislation and through the courts.
It is unclear who in the Commission has the appetite for this particular topic. The issue hasn’t come up in any of the “digital single market” Commissioners’ speeches. The copyright unit is already overworked with a shopping list of reforms expected before the summer.
This is a big issue for big tech but I hope that is not what the Commission means when it says it wants to be big on the big things.
Since the beginning of this new Commission a year ago, copyright has been a contentious issue. President Juncker asked his new team to break down national silos. VP Ansip declared his hate for geoblocking. European creators were surprised, asking themselves how their authors’ rights, the foundation of their professional activities, could be such a problem for Europe. They realised that once again, new politicians had spoken before analysing the situation. Authors therefore took it upon themselves to explain again the role of authors’ rights and copyright in the cultural and creative industries: what it does and what it is not responsible for.
After a number of high level meetings, film forum discussions, letters, statements and contact with the Commissioners’ cabinets, they believed that the danger was over and that the new Commission had understood the main features and challenges of the creative and cultural sectors, in particular the audiovisual industry. They were told that nobody would impose pan-European licences, that the role of territorial licensing of rights in the financing and distribution of audiovisual works was understood, that fair remuneration for creators was a must.
And last week the draft communication on a modern, more European copyright framework to be adopted on 9 December and designing the action of the Commission on copyright for next year was leaked. Creators bitterly discovered another story: the final goal of the Commission is still the full harmonisation of copyright in the EU, in the form of a single copyright code and a single copyright title, like in trademarks and patents, regardless of the particularities of authors’ rights and copyright and its links with culture. The Commission considers that the ultimate goal is the full cross-border access for all types of content across Europe to deliver more choice and more diversity to people. Territoriality of copyright is back as the main obstacle.
Imposing cross-border portability of content and services is a first step according to the leaked draft communication. Before this document leaked, the Commission was still assuring stakeholders that portability is not cross-border access; it will be limited to subscribers who temporarily travel outside their country of residence and services will be free to put in place authentication processes. Rightholders will be keener than ever to hear Commission guarantees that portability will not be used to circumvent territoriality.
The Commission’s second possible legislative initiative towards cross border access could come in spring 2016 with the extension of some of the provisions of the Satellite and Cable Directive to broadcasters’ online transmissions. While we consider that the Directive’s most interesting provisions lie in its cable retransmission chapter which ensures the pan-European delivery of broadcasters’ signals through cable operators with collective management solutions, it seems that the Commission is more interested in the country of origin mechanism of the direct satellite broadcasting to be extended to online transmissions. This would heavily question the territoriality principle again.
Is there anything in this draft communication to balance these attacks against the territoriality of rights? Any vision of how creators will make a living in a full digital and online environment? Apart from some already heard promises on the fight against piracy and follow the money mechanisms as well as discussions around the sharing of value created by new forms of online distribution of protected works, there is little for creators in this action plan.
The issue of authors’ fair remuneration, born of the fact that authors are barely remunerated for the online use of their works, in particular in the audiovisual sector, is only developed very briefly and no clear commitment for action is indicated. To compound it all, on top of targeting territoriality and not promising any concrete action on remuneration, the communication goes on to attack a source of revenue of creators, private copying levies.
We still believe the objective of wider availability of European works is a laudable goal, we cannot repeat it enough, screenwriters and directors are the first to be frustrated when people cannot watch the works they have created. However, this availability needs to be sustainable, this means effective financing of production and active distribution and promotion, fair remuneration for authors based on the exploitation of the works, and compensation when authors are deprived of their exclusive rights by exceptions. All this will not be achieved by getting rid of territoriality, quite the contrary.
On 18th September 2013 the European Parliament’s legal affairs committee held a hearing on private copying levies. The hearing saw authors, performers, film producers, consumers and manufacturers present their visions of the system for MEPs to take into account as they prepare a report on the issue.
What shook us at SAA is that rightsholders organisations were accused of acting as if the system worked fine and should not be changed. That we had our head in the sand and were not coming up with suggestions on how to improve the system.
We have been making proposals for some time now. These include:
- A single EU declaration point
- A harmonised method for defining leviable devices
- A harmonised approach to definitions, principles and procedures of tariff setting
- Visibility of the levies for consumers
These would ensure harmonised conditions throughout the EU and reduce the burden on importers and manufacturers, who play a vital role in making the levy system an efficient and cost effective source of compensation for rightholders.
We want legitimately purchased creative works to be accessible on the full range of devices that the modern consumer has at their disposal.
A major blow to device manufacturers and importers who just don’t want to be involved in the compensation of creators.
Private copying seems to be taking up quite a bit of the European Court of Justice’s time just lately.
July 11th saw the court issue another judgement in the field (just two weeks after publishing the Judgement in VG Wort case), this time dealing with an Austrian case. The response was unequivocal –it can be presumed that recording media are being used for private uses and that private copying compensation can be used to support cultural and creative institutions set up to benefit rightholders.
The strategy of the device manufacturers to discredit the system and break it down through country by country attacks is failing. Each decision has confirmed the validity of the private copying mechanism and underlined the need for rightholders to be compensated for their inability to authorise reproductions. Make no mistake – these are both massive victories for Europe’s rightholders.
The European Parliament will start work on a report on the issue in September. Let’s hope they put their support behind Europe’s creators and consumers and back a system that provides freedom to copy for consumers while compensating creators.
Spare a thought for Austrian creators after last week’s case. This case concerns monies that should have been paid between 2002-04 – ten years ago! Despite the positive outcomes in support of private copying compensation, these extremely lengthy court cases are undermining the system and withholding money from rightholders.
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