Conclusion A-G: only levies on data carriers when private copy use is presumable

According to Advocate General Verica Trstenjak, Member States of the EU should not indiscriminately raise a private copy levy on all data carriers. The Advocate General came to this conclusion in the case between SGAE, the Spanish organization for managing intellectual property rights, and Padawan, a manufacturer of electronic media memory.

Based on the European Copyright Directive in the Information Society, authors, performers, music and film producers and broadcasters have the right to authorize or prohibit the reproduction of their works, performances, music, films and broadcasts (article 2). This reproduction right gives rights owners the possibility to demand a fee for reproduction of their work. That basically means that everyone should first contact the right holder before reproducing copyrighted material. Member States may however make an exception to the reproduction right for the benefit of private copies. A natural person may reproduce copyrighted material  for private use and for ends that are neither directly nor indirectly commercial, on the condition that the right holders receive a ‘fair compensation’.

Most Member States luckily don’t expect people who, for instance make a private copy of a popular hip-hop song, to determine what a fair compensation is and transfer the amount to Snoop Dogg's bank account. This fair compensation is instead levied on the data carrier on which you make the copy. The producer of the data carrier periodically contributes these levies for private copies to the rights management organizations, which divide the sum among those eligible. In the Netherlands downloading falls within the scope of the private copy exception and is therefore allowed.

Padawan took the view that SGAE shouldn’t raise levies for private coping on data carriers that won’t be used for making private copies of copyrighted materials. Today, the Advocate General concluded in the case between the SGAE and Padawan before the European Court of Justice that European countries are only entitled to charge levies for private copying if there is a coherence between the right to levy and the financial compensation, ie there must be a presumption that the corresponding data carriers are actually used for making private copies. If "experience shows equipment and data carriers for digital reproduction are purchased for other purposes than for private use" there is no ground for a fair compensation within the meaning of the directive.

The Court of Justice is not obliged to follow the opinion of the Advocate General. The conclusion of the Advocate General is an independent advisory and not binding on the Court of Justice. The final ruling is subsequently delivered. Even if the European Court follows the Advocate Generals opinions, it will probably not affect the Dutch private copying system.

Private copying levies in the Netherlands must be paid to the Thuiskopie Foundation. The carriers for which a levy is required include blank DVDs, Audio CD-R/RW, data CD-R/RW 's, mini discs, VHS tapes and audiocassettes. But there are exceptions. Audiovisual production companies can under certain conditions obtain an exemption for professional use of DVDs. Also a number of blank media are excused, because they are mostly used professional. The supply of data carriers to professional users can also be exempted.

12 May 2010