Register for copyright levy obligations in Germany

A new register for companies who have to pay copyright levies for mobile phones, computer and storage media will be established in Germany. Yet it is going to be even more powerful as only compliant companies are listed in a so-called “white list”. Vice versa, not mentioned companies are pilloried for not paying copyright levies (appropriately). The responsible collecting society ZPÜ will publish (here) all names and addresses of companies fulfilling their obligations.

For a long time collecting societies were accused for not covering the bulk of the market for recordable electronic products and storage media. Hence, many companies are not reporting sales figures and are not paying established tariffs. Apparently this is true.

However, according to the tariff agreement for mobile phones and tablets from December 2015, collecting societies can now assert their claims (by contract) comprehensively. The “white list” is accompanied by well-directed research, e. g. in the manufacturer register for take-back obligations of WEEE. Other EU Member States like France and Poland approach in a similar vein. In Switzerland there is even a so-called “black list” in the environmental sector.

We are happy to explain all regulation resulting from the new general agreements for copyright levies in Germany. Feel free to contact us: info@1cc-consulting.com

Copyright Levies in Europe – 1cc Webinar with Bitkom

In cooperation with industry association Bitkom, 1cc GmbH is offering a webinar series with respect to copyright levies legislation. The series is open to everyone and it is to be continued until February 2016.

Wolfram Kühn, Senior Consultant at 1cc GmbH, will provide an insight into the multifaceted and complex matter of copyright levies in selected countries.

First Date: 14 December 2015
Time: 10:30 CET
Sign up at Bitkom Akademie: Copyright Levies in Europe – a broader view 

This first live online webinar series will be held in German. However, an English version of the presentation will be available in the near future.

Partially extreme high levies are claimed in most EU-Countries from manufacturers, importers and retailers for every computer, tablet, printer, hard disk, memory card and smartphone sold. The list of levied products is growing steadily. Obligations of manufacturers, importers and retailers are quite complex and different across countries. However, international companies have to be aware of their liabilities wherever they do business. They have to meet formal obligations, consider correct amount of levies within their pricing and adjust their marketing. Cross-border trade makes one thing compulsory: Information, preferably independently checked, comprehensive, up-to-date and reliable.

The live online webinar from BITKOM and 1cc is meant to discuss the following topics for Germany, Austria, Switzerland, France, Netherlands, and the United Kingdom:
– Legal requirements for liability
– Process to determine levies
– Concerned products, amount of levies, development of tariffs
– Liability for direct cross-border trade (distance selling)
– Current developments

Austria: New Copyright Law Effective

As of 1 October 2015, significant amendments to the Austrian Copyright Act enter into force. The legal basis for copyright levy matters is being changed in key aspects such as:

• the scope is now extended to “all storage media”
• the levied products and corresponding tariffs are to be negotiated between the collecting society and the industry stakeholders
• further changes in formal requirements, among them new exemption and refunding rules, transparency demands, visible fee, etc.

All companies having copyright levy obligations should observe these changes. Of course, 1cc is here to help you.

Revival of the French Private Copy Commission activities

More than a year ago, the activities of the Private Copy Commission, discussing and deciding any copyright levy matter in France, were interrupted by the withdrawal of the industry representatives. Regardless of this, all provisions and levy amounts remained in force. On the initiative of the Ministry of Culture this situation is to be terminated now: thorough substantive and organizational preparations including preliminary talks with the Commission members will be completed in June, so that a next meeting date can be set in September.

This is deemed necessary, among others, because six previous decisions of the Private Copy Commission had been suspended by court ruling recently. The most recent being decision No 13 in June 2014. As each decision is valid until the release of the next, the basis for past payments is in question. This applies, to emphasise again, only in respect of the past. The Conseil d’État, the French Supreme Court for Administrative Justice, confirmed the latest two decisions of the Private Copy Commission towards the end of November 2014. Thus, the current product lists, tariff calculations and tariff amounts provided by 1cc to its clients remain valid. Concerning the suspension of the above mentioned decisions: Décision n° 7-11, 2007-2008 and n° 13, 2012, it is possible that past levies paid will have to be refunded in some way. This, however, is an open issue and will likely remain for the time being.

Due to the currently complicated levy situation in France, there is uncertainty with respect to the current state of affairs: We would like to point out that all daily compliance activities are to be maintained, and that 1cc will keep you updated on all changes to be reflected in the reporting efforts.

Copyright Levies: Cascade of levy system abolishments to be expected?

While some countries around the world have created or expanded on their existing copyright levy systems, another European country has abolished its system as of January 1, 2015: Finland repealed the legal basis of the copyright levies on blank media & recording devices. Instead, the authors will be compensated via a fund paid out of the state budget. After the Finnish levy tariffs have remained unchanged for the last two years, the parliament voted in December to replace the Copyright Levy system by a government fund. From now on, no copyright levies should be paid anymore in Finland. In 2012 the Spanish Government decided to abolish its copyright levy system, establishing and replacing it by a different one, comparable to the Norwegian system, where levies are calculated into the state budget. In Estonia, a similar system is now in the planning phase.

Basically, device- and media-based copyright levy systems are a matter of fervent controversies in all countries in which they are implemented. Nevertheless, their abolishment can be considered critical: The question of (the estimated) harm for right holders caused by private copying remains and, with it, the question of its compensation. A state budget being nothing but tax revenue, every author would rely on government aid. In fact, the harm is to be taken into account and, in the absence of a copyright levy system, he will simply be financed from other sources. The authorities will raise their claims elsewhere. Does it have anything to do with the fact that the Spanish authority tried to claim excessive fees for licensing recently? It seems as if the controversy just shifted somewhere else.

Austria: Copyright Levies System still under discussion

Although an official bill amending the Austrian Copyright Act has been presented to the Parliament at the end of November, the design of the current copyright levies system is still unclear: The new bill does not include the awaited updates, i. e. it does not include hard disks and further IT-equipment to be levied. The first draft of the law contained this information.

It may seem as if the plans of a reform of the copyright levies have been abolished, but this is not the case. The collecting societies as well as industry associations inform that the debate is still ongoing. This means, that discussions are likely to resume in a couple of months. The delay of the expected amendments might be caused by the public protests and resistance for this strongly debated topic. There were many campaigns leaded by the electronics industry to stop the plans to update the levy system.

North Africa: Revisions in Existing Copyright Levy Systems

Copyright levy systems are definitely not solely a European matter. Many other countries worldwide have implemented very similar systems which must be adapted from time to time to the technical and social developments. An example for important and recent changes in Northern African countries are Tunisia, Morocco and Algeria:

• Algeria thoroughly revised the scope of levied products, amended the tariffs, changed some methods of calculating the levy, i.e. for Mobile Phones, and finally published the new list in June 2014. The scope of levied products has been substantially expanded, now covering Gaming Consoles, Tablets, Memory Cards and USB keys with larger capacities. In addition, product definitions were changed for devices such as MP3/4 players and TVs.

• Morocco published an amendment to the copyright law in June 2014 which deals specifically with the compensation for private copying. The amendment furthermore defines the responsibilities of local producers and importers of audio and audiovisual equipment. A committee within the Moroccan collecting society has been appointed to issue a list of products that will be levied. This new list is already prepared and is expected to be published within the new Financial Law of the year 2015.

• Tunisia has a remuneration system in place since 2011, with the same functions as the European Copyright Levy systems, however under a different name: Promote Creation. The levies are integrated in the customs system, and the list of levied products is currently under revision.

Spanish Copyright Act Amended

The Spanish Parliament finally approved several amendments to the Spanish Intellectual Property Law on October 30, 2014. The transitional system of copyright compensation to be paid out of the State Budget is maintained – for the time being.

According to the Government, the new amendments are meant to be a first step towards an overall revision of the current Intellectual Property Law, which will only be implemented in a European context. Apart from some defined exceptions, the current amendments will enter into force on 1 January 2015.

Key aspects of the amendments:
• Revision of the system of private copying with transitional character– State Budget System is maintained; for a revision of the private copying system the EU-Community regulation for harmonization is awaited
• Effective supervision instruments and mechanisms of the management bodies of the intellectual property rights (collecting societies); ensuring greater transparency and efficiency in the operation
• Improvement of the intellectual property protection in the internet (protection against infringements in the digital environment) – Google Tax

Copyright Levies in UK: Private Copy Exception Entered into Force

As of October 1, 2014, British users are allowed to make copies of legally owned works for their individual private use. However, it is not allowed to share the copy within a familiar circle. This new private copying exception has been approved by the British Parliament in July 2014 as an amendment to the British Copyright Act which was under revision for years.

It is assumed by the Legislator that this new right for private copying will not cause any major harm to the right holders (authors and artists of copyrighted works) by spreading the copies in a private sphere, which cannot be supervised by any authority. A compensation system with levies on CE-blank media or equipment and reprography devices, which is common practice in 22 out of the 28 European Member States, is therefore not foreseen by the British legislator. Thus, the decision of UK remains highly debatable, especially for the authors associations. Further discussions on this issue might be inevitable in the future.

Additional Copyright Levies with regard to Streaming Services?

Streaming services for video and audio have come in the focus of EU authorities in terms of copyright levies. EU authorities want to generate additional revenue for streaming services. 1cc has recently examined in detail what kind of claims relating to streaming and cloud services are being discussed.

Although the new streaming services require an access device like PC, Tablet or Smartphone, it usually does no longer result in a private copy: Streaming enables listening to music and watching videos without buying the music clip or the video as a file (download) and/or as hardcopy on a CD, DVD, etc.

But instead of adapting the existing levy systems or reducing the levies because less private copies will arise, thoughts of EU bodies and French socialist government, for instance, are moving in a completely different direction. Recent reports consider to apply taxation to further devices and to charge digital services in addition. This open question will be part of future negotiations with the rightholder organisations.