1. The calculation of private copying levies – How much harm do rightholders suffer from private copying?
Mina Kianfar

2. The calculation of private copying levies
Private copying exception and “fair compensation”
Harm caused by the making of private copies
No harm in the case of licensed online services
No harm when technical protection measures are used
No harm in the case of unlawful copies
No harm in the case of minimal prejudice
No harm when devices/media are sold for professional use
What type of use does actually cause harm?
Calculation of harm
Requirements under Collective Management/Enforcement/ Copyright Directive
Guidance from CJEU/AG
Method of tariff setting by CMOs

3. The calculation of private copying levies
Private copying exception and “fair compensation”
Reproductions for private use
“reproductions made by a natural person for private use and for ends that are neither directly nor indirectly commercial”
Fair compensation
MUST be calculated on the basis of the criterion of the HARM
caused to authors of protected works
by the introduction of the private copying exception

4. The calculation of private copying levies
Harm caused by the making of private copies
No harm in the case of licensed online services
rightholders have already received license fee
Streaming, downloads
paid or unpaid subscriptions
No harm when technological protection measures are used

5. The calculation of private copying levies
Harm caused by the making of private copies
No harm in the case of unlawful copies
Reproductions produced on the basis of an unlawful source
Illegal file sharing
Illegal streaming platforms (Filmspeller)

6. The calculation of private copying levies
Harm caused by the making of private copies
No harm in the case of minimal prejudice
Certain purposes?
Backup copies
Format shifting
Time shifting
Certain types of devices?
USB sticks
External hard disks
SD Cards

7. The calculation of private copying levies
Harm caused by the making of private copies
No harm when devices/media are sold for professional use
Levy does not apply where media/devices are
“acquired by persons other than natural persons” AND
“for purposes clearly unrelated to private copying”
Indiscriminate application if…
justified by practical difficulties
sufficient ex ante exemption is granted
effective right to reimbursement corrects any imbalances created by the indiscriminate application

8. The calculation of private copying levies
Harm caused by the making of private copies
What type of use does actually cause harm?
private copies made from an original/a copy if…
no technological protection measures are used, source is not unlawful etc.
you would have bought an original copy if private copying exception didn’t exist
harm to rightholders due to not buying an original is not just minimal

9. The calculation of private copying levies
Calculation of harm
Requirements under Collective Management/Enforcement Directive
Art. 16 of Collective Management Directive on “Licensing”
does not apply
Art. 13 of Enforcement Directive on “Damages”
no license analogy

10. The calculation of private copying levies
Calculation of harm
Requirements under Copyright Directive
Recital 35 and 38 of Copyright Directive
particular circumstances of each case
harm to the rightholders resulting from the act in question
functioning of the internal market

11. The calculation of private copying levies
Calculation of harm
Guidance from AG Villalón in the “Copydan Båndkopi” case
tariffs set by the collecting societies must be
“objectively established
on statistical bases of
use of the various media for the purposes of reproducing protected works and
their respective economic effects on rightholders.”

12. The calculation of private copying levies
Calculation of harm
Guidance from AG Wahl in the “Biedrība” case
CMOs have a dominant position
impose unfair trading conditions
price is excessive in relation to the economic value
royalties appreciably higher than those charged in other MS
CMO must justify the difference

13. The calculation of private copying levies
Calculation of harm
Art. 102 TFEU
royalties appreciably higher than those charged in other MS
Tablet (16 GB) 2015 DE AU BE SE PT HR F I NL HU
8,75
3,75
2,50
1,71
1,92
1,31
8,40
4,00
3,50
10,13

14. The calculation of private copying levies
Calculation of harm
Method of tariff setting by CMOs
Obligations under the Collective Management Directive
based on objective and non-discriminatory criteria
inform the user concerned of the criteria used
provide users with all necessary information

15. The calculation of private copying levies
Calculation of harm
Method of tariff setting by CMOs (what actually happens)
no publicly available information on criteria used
negotiations between industry associations and CMOs
Consumer associations are not involved
take many years and lead to court proceedings
tariffs are applied retroactively
empirical studies aim at measuring how many copies are made
do not assess whether rightholders suffer HARM

16. THANK YOU FOR YOUR ATTENTION!
Mina Kianfar