Private copying and reprography: a new era or a new ear?

António Vitorino

On 2 April 2012 António Vitorino launched a mediation process for resolving discrepancies arising from private copying and reprography levies. From our friend Magali Delhaye comes this most revealing note:

"Mr. António Vitorino, a former European Commissioner responsible for Justice and Home Affairs as well as a former Deputy Prime Minister and Defence Minister of Portugal, announced on 2 April 2012 the launch of the mediation process on private copying and reprography levies for which he had been appointed by Commissioner Barnier. The creation of this mediation process was announced in May 2011 within the framework of the Communication on a Single Market for Intellectual Property Rights and it aims at laying the foundations for legislative action on private copying levies at EU level.

Mr. Vitorino explains in his statement that, as of this month, he will start discussions with those he has identified as key stakeholders on the basis of the following identified core issues:

“1. Methodology for setting levy tariffs
2. Cross-border sales
3. Determination of the person or entity liable to pay the levy
4. Visibility of the levy
5. Private copying and reprography in the context of new digital forms of distribution of copyright- protected content and the implications for levy systems.”

He is also inviting other stakeholders and organisations “which have a keen interest in finding workable solutions to the above-mentioned issues to send [him] their succinct and constructive contributions in writing. Contributions should be based on the questionnaire in Annex and sent to: markt-levies-mediation-2012@ec.europa.eu by 31 May 2012.” 

The former Commissioner expects to finalise his consultations in the summer and to present his conclusions and recommendations to Commissioner Barnier during autumn 2012".

Adding to this, Sandra Alverà (Manager, European Legal and Government Affairs, Panasonic Europe Ltd) -- who also drew our attention to this launch -- points to the following passage from this item posted in the European Commission's Midday Express:

"The objective of the mediation process is to identify ways to tackle the discrepancies characterizing the levy systems as set out at national level, as well as to assess the functioning and the scope of the private copying and the reprography exceptions in today's fast evolving digital environment. The results of the mediation will be used to make recommendations for legislative action at EU level".

She then notes Mr Vitorini's own words on the topic here and cites the specific issues that lurk behind the five headings listed above:

"1. Methodology for setting levy tariffs
1) How could methodological coherence in tariff setting for private copying levies be achieved across the EU?
2) How could methodological coherence in tariff setting for reprography levies be achieved across the EU?

2. Cross-border sales
1) How should levies be collected in cross-border transactions?
2) How should double payment be avoided in cross-border sales?

3. Determination of the person or entity liable to pay the levy
1) Who should be liable to pay private copying levies?
2) Who should be liable to pay reprography levies?

4. Visibility of the levy
1) Should an obligation be introduced to display the levy on each invoice in the sales chain, including on the consumer's invoice?

5. Private copying and reprography in the context of new digital technologies
1) In what way are levy systems affected by new business models and technological developments? Do such developments allow rightholders to control and license copying by private individuals to such an extent that it could have a material impact on the way private copying and reprography is dealt with at EU level?"

With rights owners considering their copyright works to be discrete and potentially valuable assets while licensees often view the same works as mere commodities, and with collecting societies (where relevant) occupying an uncomfortable space between the two, it will be a rare and unusual mediation that will find much common ground upon which to build consensus-based legislative solutions. Meanwhile, all lobbying will be presumably directed towards Mr Vitorini and thus away from those European policymakers and legislators who may feel that they've been lobbied quite enough already, thanks. In this new era for private copying and reprography, Mr Vitorini's will be the new ear.