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You can for your private use make reproductions of works and musical performances without asking permission from the writer or singer. In return, you pay them, indirectly, a small sum. This amount is included in the selling price of digital media and devices you use. The amount of this sum compensates the rightholders for the reproductions of their works made without their permission.

Following the Court of Justice of the European Union (Luxembourg), the amount of money may not also compensate rightholders for reproductions made from illegal sources such as peer-to -peer or direct download.

Private copy, a beneficial system for all

The majority of European countries have introduced in their legislation the practice of the private copying. In these countries (Belgium, France , Netherlands , Spain … ) , you can reproduce for your private use and on a blank CD or DVD, USB key or an external hard drive, an MP3 or a movie shown on TV without asking permission from the authors or artists or producers of the film or the song.

Because the writers, producers , etc. . can not you monetize their permission (which cause them a financial “harm“) they receive from their respective collective management organisation, a compensation called “private copy” .

The money of this compensatory remuneration comes from the sales of equipment and materials allowing you to make and use the reproductions. Indeed, a very small portion of the sale price of these devices and media (the so-called “private copy levy”) is paid to a collective management company in charge of the collection (Auvibel in Belgium, Copie France in France, Stichting de Thuiskopie in the Netherlands, for example) by the national importers of these devices and digital media.

The levies are determined collectively (and sometimes with great difficulty) by the authors/artists/producers/publishers and manufacturers who import equipment and materials. By joining their collective management organisation , itself a member of the company in charge of the collection of the private copy levies, the authors / artists / producers / publishers will receive their due part to compensate for their harm (and according to the distribution regulation existing within these umbrella companies like Auvibel, Copie France).

In summary therefore, the beneficiaries can not prevent you to make personal copies of their works but in exchange they receive, via management companies, minimal salary compensation.

Levies to compensate only legitimate copies

It is obvious that the amount of the private copy levies compensate rights holders for the reproductions on an iPod of songs legally purchased on iTunes.

But can these levies also compensate rightholders for reproductions on an MP3 player of MP3 illegally downloaded via illegal sources such peer-to -peer networks for example?

The question is not purely theoretical.

Indeed, the amount paid by the importers of equipment and digital media to the national Auvibel or Copie France will obviously be higher if it also financially compensate beneficiaries for illegal reproductions of their works.

Challenged in a proceedings initiated by such importers, the Court of Justice of the European Union has just made an important decision about this and the answer is clear : no.

According to the Court, the national legislation can not:
1. allow illegal reproductions of works and related works ;
2 . therefore and consequently, allow the private copy levies also to compensate rights holders for reproductions of works or services that the public has obtained illegally.

The beneficiaries will have to seek other financial compensation for reproductions of their works illegally obtained. In other words, through legal proceedings against infringers or operators of illegal sites and promoting further measures to filter and to block illegal sites.

Decide otherwise even under an “objective of proper support for the dissemination of culture” (paragraph 36 of the judgment) would, according to the Court, undermine the proper functioning of the internal market and the interests of rightholders. Reverse decision would have encouraged the development of illegal reproductions and thus forced rightholders to “tolerate” infringements of their works and performances while they have to already accept private copies of works from legitimate sources.

The Court also points out the fact that it would not be fair to have to support the payment of private copy levies higher as also including unlawful reproductions to users who do not realize them (paragraph 56 of the judgment).

A logical judgment based on the internal market principles

The decision of the Court of Justice is quite legitimate though again, it is a praetorian decision therefore subject to caution.

Indeed, as the Court itself said in its decision (point 29), European legislation in force does not address “expressly the lawful or unlawful nature of the source from which a reproduction of the work may be made.”. The Court took its decisions solely on the preparatory work of the European directives (and more specifically those of Directive 2001/29 of 25th May 2001) and the objectives underlying these Directives (ensuring the proper functioning of the internal market and protect the interests of rights holders).

No Member State has ever prevented a rightholder to assert his rights in justice while his national law has also compensated him before for the unlawful reproductions of his works via private copying. And no judicial decision has ever reduced the amount of damages awarded to a claimant because he was previously compensated for unlawful reproductions of his works via private copying.

It is then easy to understand that the decision of the Court of Justice, that we fully agree, finds its true foundation in the principles that have been established at European level in order to protect internal market and culture.

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