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Digital reproduction can be subject to private copying levy irrespective of actual use

23 March, 2015

Answering a reference from the Danish court the CJEU held that Information Society directive does not preclude national legislation, which provides that fair compensation to be paid to right holders, from levying the same in respect of multifunctional media such as mobile telephone memory cards, irrespective of whether the main function of such media is to make such copies and it is sufficient that the device enables the operator to make copies. COPYDAN, a body responsible for administration of copyright contended that the company selling mobile phones was liable to pay private copying levy in respect of memory cards imported by it. The respondent-company argued that it sold the memory card to both individuals and business customers and that it could not monitor whether in fact copies authorised /unauthorised were made using the device supplied by it. Also the object of the levy was to provide fair compensation and even if copying did take place it would not be above minimal and would not prejudice the right holders.

However, the court on 5-3-2015 in the case of Copydan Bandkopi v. Nokia Danmark opined that given the practical difficulties of identifying private users, those who have digital reproduction equipment and those making it available can be held liable for compensation. The fact the reproduction function is ancillary to a device, causing lesser prejudice, may be relevant to decide amount of compensation. It also stated that reproductions of protected works by or with the aid of a device which belongs to a third party could be subject to the private copying levy. In answer to the question whether different types of devices, for example telephone memory cards which are detachable and internal memories of MP3 players should be subject to the same levy, the court held that the national legislation could provide for different levies provided the same was justifiable. 
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