Austria: Austrian Constitutional Court Declares Percentage Cap Of Copyright Levies Null And Void

Last Updated: 17 January 2019
Article by Adolf Zemann and Guido Kucsko

Most Read Contributor in Austria, May 2019

Copyright levies on recording media have been occupying the Austrian courts, courts of other Member States and the CJEU frequently over the last few years. A recent decision of the Austrian Constitutional Court adds another chapter to this never-ending story.

The background

Based on the InfoSoc-Directive (2001/29/EC), Member States must provide that authors have the exclusive right to prohibit or authorise the reproduction of copyrighted material. Member States may provide for exceptions and limitations to this exclusive right, among others 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 ("private copy"), on condition that the rightsholders receive fair compensation (Art. 5 (2)(b) InfoSoc-Directive). In Austria, Section 42b of the Copyright Act ("CA") ensures such "fair compensation" by providing for a levy on recording media and one on devices used for reproductions on paper and similar materials.

In 2015, this provision was amended to include a long list of factors to be considered when determining the levy. Section 42b (4)(8) CA provides that there should be an appropriate relationship between the typical price level of the products and the levy, whereby the levy on recording media should not exceed 6 % of the price level, unless the recording media is almost exclusively used for private copying. The rates for the copyright levy agreed on between the collecting societies and industry associations in the so-called Gesamtverträgen in many cases substantially exceed this "cap", in particular regarding rates agreed on before the 2015 amendment of the CA.

The case

Austro-Mechana, the Austrian collecting society entrusted with the collection of the levy, sued a person selling blank CDs. This person only agreed to pay an amount equal to 6 % of the price of the blank CDs, but not the amount requested. In addition, the defendant argued that under the 2015 amendment, another cap of 29 million per year of copyright levy was introduced into the Copyright Act (Section 116 (11) CA) and that this amount was already exceeded in the relevant year.

The Commercial Court Vienna granted Austro-Mechana's claims. Together with its reply to the defendant's appeal, Austro-Mechana filed a request to the Austrian Constitutional Court asking it to annul the 6 % cap provided in regard to the levy on recording media and the 29 million total amount.

The decision

The Constitutional Court granted Austro-Mechana's request regarding the 6 % cap, arguing that the cap provided for in Section 42b (4)(8) of the Copyright Act would prevent collecting societies and industry associations from agreeing on fair compensation. The Court therefore considered the 6 % cap not only inappropriate to ensure the objective of Section 42b, but in fact as an obstacle, and repealed the relevant parts of Section 42b (4)(8) CA as conflicting with the general principle of equal treatment.

On the other hand, the 29 million total amount was considered in line with the constitution, as the Constitutional Court did not consider it a "cap" but rather a "guidance value". In case of deviations, the collecting societies and the industry associations would only be obliged to initiate negotiations regarding the rates.

Concluding remarks

This new decision confirms the position of the collecting societies, which have from the very beginning considered the 6 % cap to be against EU and Austrian constitutional law. Considering that 2019 is the last year in which the 29 million "cap" is applicable (unless the legislator would provide for an extension), the collecting societies may soon try to renegotiate some of the tariffs. Moreover, in its transparency report for 2017, Austro-Mechana states that a survey on the use of the storage space in the "cloud" has been ordered (which Austro-Mechana is obliged to conduct if it wants to publish rates for new recording media for which it intends to collect a levy) that showed substantial use of the "cloud" for private copying. While it is a point of contention in the legal literature whether Austrian law provides the basis for such a levy at all, and while collecting such a levy would also face practical difficulties, the collecting societies have evidently not given up this "project". It looks like 2019 will be another interesting year in the "copyright levy realm" indeed!

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions