On 11 June 2015, Advocate General Cruz Villalón delivered an opinion on a request for a preliminary ruling from the Brussels Court of Appeal in a case between Hewlett-Packard Belgium ("HPB") and Reprobel (Case C‑572/13) with regard to the Belgian rules governing levies on multifunctional printing equipment.
Reprobel, a collecting society, had asked HPB to pay a levy for the sale of multifunction printers. Such a levy is due as fair compensation to authors for the copying of their work using the devices. Since Reprobel and HPB did not reach an agreement on the amount to be paid, HPB sued Reprobel so as to obtain legal certainty on the royalties due.
The case was brought before the Brussels Court of Appeal (the "Court") which referred four questions to the Court of Justice of the European Union (the "ECJ") for a preliminary ruling on the provisions of Directive 2001/29 EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (the "Infosoc Directive").
First, the Advocate General assessed whether the Infosoc Directive allows the amount of the levy to vary according to the person who makes the reproduction and the commercial nature of the copies. The Advocate General noted that although Article 5(2)(a) of the InfoSoc Directive does not exclude certain persons or purposes, it does not prevent Member States from differentiating between such situations as long as this differentiation is based on objective, transparent and non-discriminatory criteria.
Second, the Advocate General looked into the calculation of the levy. In particular, the Advocate General assessed whether the provisions of sections a) and b) of Article 5(2)of the Infosoc Directive allow a Member State to establish, for the financing of the fair compensation, a system of dual fixed and proportional levies.
Under Belgian law, the fixed part of the levy is paid by manufacturers/importers (Article XI.235 of the Code of Economic Law and is based on potential harm caused to the author. According to the Advocate General, such a levy is proportionate and the criteria used to determine the levy (i.e., the maximum speed for copying in black and white) objectively reflect the ability of the equipment to potentially prejudice authors.
Nevertheless, the Advocate General pointed out that it is likely that a private person using a multifunctional printer for his own personal use will cause less harm to authors than printers of the same speed used in libraries or copy shops. The Advocate General therefore believed that the fair balance would be better guaranteed if criteria other than the maximum speed were also taken into account.
Furthermore, the Advocate General considered that the amount of the proportionate levy per copy (Article XI.236 of the Code of Economic Law) will differ depending on whether the user collaborated with Reprobel in determining how many copies were made by a given device during a given period of time. According to the Advocate General, it is for national courts to assess whether the difference in price per copy is objectively justified and proportionate to the objective pursued.
In light of the above, the Advocate General expressed doubts as to the admissibility of the dual fixed and proportionate levy. Indeed, given that the proportionate levy paid by the user is deemed to compensate for the actual harm, the Advocate General sees no reason to add a fixed levy to be paid by the manufacturer/importer to compensate for a potential harm caused by the same equipment. The Advocate General therefore recommends that the proportionate remuneration, when calculated, should take into account the amounts that have already been paid as fixed remuneration.
Third, the Court sought to know whether the InfoSoc Directive allowed publishers to be beneficiaries of the fair compensation as well. Indeed, in Belgium, publishers receive half of the levies collected. However, during the proceedings, the Belgian government explained that the compensation given to publishers was a sui generis compensation and was not taken away from the fair compensation for authors. The Advocate General therefore decided that it belonged to the national court to ascertain that the sui generis compensation for publishers does not lower the fair compensation for authors.
Fourth and finally, the Advocate General found that the system of collection of fair compensation in Belgium does not take into account copies for which no levy is due. In particular, the Advocate General held that the system does not distinguish between copies of works that fall under the fair compensation scheme and works for which no levy is due because of an exemption foreseen by the InfoSoc Directive (e.g. sheet music copies can be made without any fair compensation being due). In addition, the levy should not cover reproductions which were made from unlawful sources. This was confirmed by the Court of Justice of the European Union in the Copydan Båndkopi case (See VBB on Belgian Business Law, Volume 2015, No 3, pp. 12 and 13, available at www.vbb.com). The Advocate General was of the view that these situations should be taken into account when the levies are being collected.
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