Intellectual Property Commentary 2-2017
Back to the past for the private copying levy
On July 3, 2017 the Council of Ministers passed Royal Decree no. 12/2017, amending the limitation on private copying and regulating fair compensation for such limitation – the “private copying levy”. Compensation paid out of the general state budget was rendered null and void by the courts and the new regulation has now gone back to the system that was in force until 2011. Under the former system it was the manufacturers, distributors and importers of the equipment, devices and media capable of making private copies of protected works that had to pay the levy.
So-called “private copying” is a legal limitation on the exclusive right of authors (or other copyright holders) to authorize or prohibit the reproduction of their works or other subject-matter. This limitation is regulated in Directive 2001/29/EC and in the Spanish Copyright Law (article 31.2) and enables individuals to make copies of works they have gained access to lawfully for personal use without the rightholder’s authorization. In return for such limitation, the law envisages fair compensation (article 25), aimed at offsetting the economic damage that private copying causes to rightholders.
The legislative vagaries on the subject reveal that the regulation of fair compensation has not gone smoothly: the cancellation of the system that had been in force until now (pursuant to which compensation was paid out of the general state budget) has been imposed following judgments by the CJEU of June 9, 2016 and the Supreme Court of November 10, 2016.