<nettime> Historical verdict against digital levy

[Simona Levi <info@conservas.tk>]

Note of the lawyer (member of EXGAE - http://exgae.net ) that won the case:

Spain's "Digital Canon" Deemed Illegal by the European Court of Justice


In a sentence released today, Thursday October 21st, 2010, the European Court of Justice 
has ruled that the indiscriminate application of the digital canon or levy in Spain is not 
in line with European Legislation:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2009:019:0012:0013:EN:PDF

The Court deems that there must necessarily be a link between the application of the levy 
for private copying and actual usage for the purpose of making private copies. Thus, the 
levy cannot be applied to all blank recording CDs and DVDs and other digital media and 
players, but only to those which could supposedly cause damages to authors protected by 
copyright.

Professionals, companies and public institutions are thus directly excluded from the 
obligation to pay the canon. In addition, royalties collection societies shall not be able 
to charge private users for equipment, appliances and media that cannot be used for 
private copying, as they have been doing to date. The ruling cites the above cases as an 
exception, but there is no reason why they should be the only ones.

Nevertheless, the ruling allows the levy to continue to be charged to private users on 
purchase of appliances and media that can potentially be used for private copying. Even 
so, we understand that as a presumption is involved, there must be a mechanism through 
which the individual can prove non-usage of these media for private copying, and as such 
be exempt from the canon.

There is no doubt that the digital canon is illegal, and the Spanish state must cease to 
apply as it has done until now.

This ruling also opens the door to requests for the annulment of all rulings that have 
obliged legal entities to pay the canon, and for citizens to demand that the government 
introduce a new system of compensation for private copying that is not applied abusively 
and indiscriminately.

*Note: the verdict and future consequences will be discussed next week at the FcForum with 
the lawyer and other parts involved (http://fcforum.net/10)*


Josep Jover Padró
jjover@estudisjuridics.net
Estudis Jurídics



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