Private copying was born from copyright law adapting to the evolution of creative works’ consumption. It is a modern tool, capable of adapting to current and future practices.
When the EU harmonised the list of possible exceptions to copyright in the EU 2001/29 Copyright Directive, it included the private copying exception - which already existed in many EU countries - on the condition that rightholders receive fair compensation. No harmonisation of any element of the compensation is provided by EU law (except some guidance in recital 35), so Member States continued to develop their own compensation systems. Almost all Member States which apply the private copying exception have introduced a system of levies on copying devices and media.
As an exception to copyright, it deprives rightholders of their right to authorise these copies. Therefore, any proposal to reintroduce private copies in the licensing system would necessitate deletion of the exception so that rightholders would be empowered to deliver authorisations. However, the SAA is not of the opinion that such a move would be beneficial to audiovisual authors and consumers (see below). The SAA supports the levy system for private copies.
- Art 5(2)(b) of the EU 2001/29 Copyright Directive states that "Member States may provide for exceptions or limitations to the reproduction right provided for in Article 2 in the following cases: (…) (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;"
- The VG Wort CJEU ruling (C-457/11 to C-460/11) clarified that the fact that rightholders’ have expressly or implicitly authorised the reproduction of their protected work or other subject-matter and the possibility of applying technical protection measures (TPMs) have no bearing on the fair compensation owed.
The private copying system allows consumers to copy their music and audiovisual works from one device or multimedia carrier to another for personal use as much as they like without seeking the authorisation of the rightholder. It derives from the idea that it would be impractical for consumers to seek rightholders' authorisation each time they want to make a copy for private use.
The private copying system is a balance between the freedom to copy and rightholders' fair compensation for lost income opportunities, e.g. via the agreements they could have concluded if there were no exception.
- The Padawan CJEU ruling (C-467/08) made clear that levies should be calculated according to the assumed harm sustained by rightholders by the private copying in question. In addition it stressed that whereas the harm of an individual copy is perhaps negligible, the harm caused by millions of copies is considerable.
The fair compensation is the condition for the private copying exception. It compensates creators’ inability to enforce their authors’ rights and the economic harm suffered by rightholders for the lost income opportunities. Such compensation is organised in most Member States via a system of levies applied to recording media and devices.
It is Not a tax – it is not collected by the State to supply the general budget and support public policy goals. The levies are organised by rightholders and their collective management organisations to compensate the harm caused by copies made outside the creators’ control and thus without any possibility to request payment for them.
- According to the Padawan CJEU ruling (C-467/08), the notion of fair compensation is an autonomous concept of EU law which must be interpreted in a uniform manner in all Member States, irrespective of the Member States' right to choose the system of collection (para 29).
- As confirmed in the Padawan CJEU ruling (C-467/08) and the Opus CJEU ruling (C-462/09), the purpose of fair compensation is to make good the harm rightholders suffer as a result of unauthorised reproductions of their works.
- Again, according to the Padawan CJEU ruling (C-467/08), it is consistent with the requirements of 'fair balance' to provide that persons who have digital reproduction equipment, devices and media and who on that basis, in law or in fact, make that equipment available to private users or provide them with copying services are the persons liable to finance the fair compensation, inasmuch as they are able to pass on to private users the actual burden of financing it (para 50).