Month: July 2015

Link between the compensation and the presumed use for private copying (de)

An exception or limitation under Article 5(2)(b) of Directive 2001/29 may be regarded as a form of interference with the exclusive reproduction right of the rightholder which is permitted by Community law, although in such a case that provision of the directive mandatorily requires compensation for the author. Where a Member State transposes that provision into its national legal system, the making of a private copy by a natural person must be regarded as the specific act of interference which, subject to further criteria to be laid down by statute, triggers the rightholder’s entitlement to financial compensation. In that respect, there is certainly a linkage between the making of a private copy and the payment which is owed. That applies regardless of how the respective Member State’s system of collection for compensation for private copying is organised in detail and whether it is financed, for instance, by means of a levy. On the other hand, the requirements in relation to that link should not be raised so high that ultimately the actual use of the relevant devices for the purposes of private copying would have to be required. Rather, even potential use would have to be regarded as sufficient.

The EU needs better tools to protect EU intellectual property in third countries, say MEPs in a resolution voted on Tuesday. They ask the EU Commission to look into appropriate means and methods to this end. In a separate resolution,…

Legislative intervention

Adequate remuneration of authors and performers

This option would consist in determining and harmonising the mechanisms required to help achieve adequate remuneration of authors and performers throughout the EU. This could include, for example, harmonised rules as regards contractual clauses between authors and performers on the one hand and producers/publishers on the other (e.g. some types of clauses could be blacklisted) as well as modalities relating to the transfer of rights, possibly per sector (e.g. presumption of transfer of rights could be established).

Russian government has directed Russian ministry of economic development to form permanent working group, which should consist of persons from different authorities and companies to improve collection of non-tax payments including, what most important is, royalty payment collected by Russian Authors Society (RAO) and Russian Union of Right holders (RSP).

Purpose of “fair compensation” (de)

‘Fair compensation’ within the meaning of Article 5(2)(b) of Directive 2001/29 is not aimed at compensating the rightholder for illegal actions in connection with the unauthorised reproduction of works and other subject‑matter. There is only a claim to compensation in connection with private copying, provided that such copying is permitted according to the copyright laws of the Member States. The fact that – for instance on the internet via so-called ‘P2P’ (peer-to-peer) file sharing – widespread infringement of the essentially comprehensive reproduction rights of the author may be observed is not relevant in connection with that provision of the directive, and neither can it be regarded as a factor for the purpose of ensuring a balance between the interests of the rightholder and of the user. Copies which are made illegally in that way in fact mostly serve commercial purposes. In any case, they serve purposes other than ‘private use’ within the meaning of Article 5(2)(b) of Directive 2001/29 and are therefore not covered by the limiting provision.

Legislative intervention

Rights in online transmissions

Under this option, it could be clarified in a legally binding manner that, in the context of the InfoSoc Directive, the principle of exhaustion applies to copies acquired via download-to-own services in the online environment (to the extent required to achieve a functional equivalence to the “physical world”). In addition, a mandatory copyright exception that explicitly covers linking and browsing could be introduced. As to the reproduction and making available rights, two alternatives can be envisaged: