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

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

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

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

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)

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

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

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

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

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

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.”

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

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

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

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

THANK YOU FOR YOUR ATTENTION! Mina Kianfar