The Advocate General Presents Conclusions On “Digital Levies”

27 May 2010

The Advocate General who heard the pre-trial matter submitted by the Audiencia Provincial of Barcelona in relation to levies establishes that, in practice, the Spanish payment system for private copying may not be fair.

The case has its origins in the issues raised by the Audiencia Provincial of Barcelona in relation to the interpretation of the concept of “fair compensation” pursuant to Article 5(2)(b) of EU Directive 2001/29 and based on a lawsuit to which the Spanish intellectual property rights management society SGAE is a party. This led to an examination of the Spanish system of payment for private copying on electronic storage media.

The Advocate General asserts that when a Member State opts for a levy system in respect of compensation for private copying on equipment, devices and digital reproduction media, this levy must be linked to the presumed use of those equipment and media for making reproductions covered by the private copying exception. It can be thus inferred that the application of the levy is only justified when it can be presumed that the digital reproduction materials, equipment and devices are to be used for private copying.

The Advocate General concluded that the indiscriminate application of the levy for private copying to businesses and professionals who clearly purchase the digital reproduction media and devices for purposes other than private copying does not square with the concept of “fair compensation” in the sense of Article 5(2)(b) of EU Directive 2001/29.

The importance of the Advocate General’s opinion is considerable, since a high percentage of EC Court rulings are influenced by her conclusions.

For further information, please contact Eric Jordi: ejordi@mmmm.es