National Levy Schemes and EUCD

Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society (the “Copyright Directive”) sets forth several important rules relating to private copying and “fair compensation”. This analysis, prepared by the Copyright Levies Reform Alliance and its network of national counsels, looks at how 20 EU Member States with private copy levies regimes have implemented (or are proposing to implement) these rules.

Each country analysis provides an unofficial translation of the relevant national rules implementing Copyright Directive Article 5.2(b). Each analysis also provides background on the functioning of the national levy regimes in the various markets, and explores how the Copyright Directive’s levies-related provisions are being applied in practice.

Many Member States have yet to implement the Copyright Directive’s mandate that fair compensation reflect the application of TPMs.
Article 5.2(b) of the Copyright Directive provides that in assessing fair compensation, account must be taken of the application of technological protection measures (TPMs). While some Member States—including Belgium, Finland, Germany, Hungary, Italy, Lithuania and Spain (in its proposed implementation)—have transposed this language into national laws, many others have not.

Moreover, at practical level, TPMs do not appear to be systematically taken into consideration when assessing levies.
In virtually all of the countries surveyed (including those that have transposed the Art. 5.2(b) language into national law), as a matter of practice it does not appear that levies are reduced where TPMs are applied. Only in the Netherlands did we find evidence of a systematic reduction of levies (on DVD-R+) in light of the application of TPMs.

Likewise, it does not appear that there has been any systematic assessment of the harm caused by private copying.
Levies are intended to compensate for the harm inflicted on right holders by private copying. Accordingly, the Directive (Recital 35) indicates that harm is a valuable criterion in assessing the form and amount of fair compensation. Despite this, virtually none of the countries surveyed make a systematic effort to assess the actual level of harm incurred by right holders before fixing private copy levies.

There is a lack of transparency in the levy process.
In most markets surveyed, while the requirement for fair compensation is established in the national copyright act, much of the detail of these regimes is left to secondary legislation and/or collecting societies to establish. For example, it appears that certain collecting societies offer discounts, which can be significant. These discounts do not appear to be clearly set forth in official publications, however; instead they are agreed separately and diverge from published tariffs.