Comments on António Vitorino’s recommendations resulting from the mediation on private copying and reprographic levies by Olav Stokkmo, CEO of the International Federation of Reproduction Rights Organisations (IFRRO)

I appreciate Mr Vitorino’s intention to facilitate and advance future discussions on copyright levies, and welcome his acknowledgement that levy systems are here to stay for the immediate future, and also that reprographic levies need to be treated differently to private copying. It is also helpful that he explicitly recognises that the alternative forms of compensation touted by some stakeholders are not sufficiently worked out and some may not even conform to existing law. These are important steps to bring the debate forward.

In respect of his recommendations, I agree that levies should be collected in cross-border transactions in the country of destination and welcome the acknowledgement that, under a levy based systems, in principle all equipment and devices with a copying capability could be subject to the levy.  The recognition that reprography levies differ from private copying levies in that they are not restricted to equipment sold to private users is also to be welcomed. Levies in relation to text and image based works encompasses private, professional, educational and other forms of uses. Correctly, in my view, Mr Vitorino leaves to the Member States the decision on which products should be included in the levy.  The principles of subsidiarity, which militate against too much harmonization at European level and of increased visibility for the levy charges are also recognised by Mr. Vitorino.
I have reservations and questions about several parts and aspects of the report.  IFRRO has always opposed a shift of responsibility towards retailers for the payment of the levy.  I do not accept Mr. Vitorino’s arguments for such a shift and indeed wonder if he is wholly convinced himself as he admits the complexity of the process that it would require, with declarations from manufacturers, importers and retailers alike. Even if the argument should hold for private copying, his proposal to extend it also to reprography, which he has recognised is different, seems to be based mainly on a desire for a neatly uniform system.  I also question the assertion that the reimbursement systems for cross-border transactions are cumbersome.  In the area of reprography, at least, they function well with few complaints. I also do not see why the “operator levy” was brought into the report. It was not addressed in the mediation and regret that it was not brought up with us when the decision was made to include recommendations on it. I am confident that IFRRO can offer information and expertise that would contribute to a better understanding of how this part of the levy system works, which could easily have led to different conclusions from the ones expressed in Mr. Vitorino’s report. 

Also, in some cases I find it difficult to understand exactly what is proposed.  For instance in relation to the definition of the concept of “harm” it should be made clear that the “lost profit” is the lack of remuneration suffered by the rightholder, which is the real measure of harm. Besides, I find Mr. Vitorino’s approach to harm to be too simplified. 

In conclusion, while I find that there are certainly positive elements in Mr Vitorino’s recommendations, I believe that there are outstanding questions that need clarification. Therefore IFRRO will be studying the text in more depth and seeking further explanations before we commit ourselves finally. 

The EC press release is available here, while António Vitorino’s report can be found here