The reproduction of works protected by copyright for private use is permitted under the law without the need for the acquisition of the author’s permission (Article 5 § 2b of Directive 2001/29 / EC, Article 18 § 1 N. 2121/1993). In exchange for recognizing the freedom of users for the private use of protected works European Union law gives copyright holders the right to receive fair and adequate compensation for such use of their works (Article 5 § 2b of Directive 2001/29 / EC).
The adoption of the private levy purports to provide redress to authors for the private copying of their works, which should therefore be considered as compensation for the damage inflicted to authors by acts of reproduction done without their permission (see CJEU, decision of 21 October 2010, C-467/08, Padawan, ECR 2010, p. I-10055, paragraphs 39 and 40).
The private levy system is delineated in EU law and, in particular, Directive 2001/29/EC. The Directive leaves to member states a wide discretion to determine who is liable to pay the levy, its form, amount and payment procedure (see to that effect, CJEU, Stichting de Thuiskopie, C -462/09, EU: C: 2011: 397, paragraph 23, Copydan Båndkopi at Nokia Danmark A / S, C-463/12, paragraph 20, and Amazon.com International Sales, etc., EU: C: 2013 515, paragraph 20). Nevertheless, the amount of the levy and the system as a whole has to be proportional to the damages inflicted to right holders by the private reproduction of their works (see., CJEU, Padawan decisions, EU: C : 2010: 620, paragraphs 40 and 42, Copydan Båndkopi at Nokia Danmark A / S, C-463/12, paragraph 21).
In Greek law the right of copyright holders to fair compensation in return for the private reproduction of works is stated in article 18 §§ 1 – 3 of the no. 2121/1993 Copyright, Related Rights and Cultural Matters Act, which incorporates into Greek law the respective content of Article 5 of Directive 2001/29 / EC on “copyright and related rights in the information society”.
The Scope of the Right to Private Levy
The obligation for the payment of the private levy is applicable under the condition that it relates to the private reproduction of protected works (Article 5 § 2 of Directive 2001/29 / EC). An act of reproduction is considered private and permitted under the law, on the basis that such an act is exclusively conducted by the lawful user of a protected work in her private sphere and is not directly or indirectly related to commercial purposes (Article 5 § 2b of Directive 2001/29 / EC). Private use is presumed and, therefore, is sufficient to justify the payment of the private levy, on the condition that (i) the relevant equipment is capable of producing copies of intellectual works and (ii) such equipment is sold to end users, i.e. natural persons (CJEU, Padawan decisions, EU: C: 2010 620, paragraph 56, Copydan Båndkopi at Nokia Danmark A / S, C-463/12, paragraphs 24-25).
Use within a business or a public service or a legal entity in general does not fall under the scope of permissible private use and is, therefore, subject to the right holder’s prior permission (see. Marinos, Intellectual Property Law, p. 440). As a result, the obligation to pay private levies shall not apply to produced or imported equipment, which is not made available to third parties for purposes related to private reproduction. Professional and business use in not considered as relating to private reproduction (see. CJEU, 21 October 2010, C – 467/08, Padawan SL in Sociedad General de Autores y Editores de Espana (SGAE), paragraphs 41, 51, Case of 16 June 2011, C – 462/09, Stichting de Thuiskopie v Opus Supplies GmbH Deutschland, Mijndert van der Lee, Nananja van der Lee, Athens First Instance Civil Court 4292/2013). In this context, the CJEU has held that the obligation for the payment of private levies shall not be imposed on the sale of equipment to non-natural persons for purposes clearly unrelated to private reproduction (CJEU, Padawan decisions, EU: C: 2010: 620, paragraph 52, Copydan Båndkopi at Nokia Danmark A / S, C-463/12, paragraph 47 and Amazon.com International Sales, etc., EU: C: 2013: 515, paragraph 28). In addition, to be regarded as compatible with EU law, member – state laws on the private levy should grant the statutory right of producers and importers of reproductive equipment to recover any levies paid when providing evidence that such payment refers to devices used for commercial, non-private, purposes (CJEU, Amazon.com International Sales, etc., EU: C: 2013: 515, paragraph 31, Copydan Båndkopi at Nokia Danmark A / S, C-463/12, paragraph 45).
Beneficiaries and Debtors of the Private Levy
The law specifies the following entities as beneficiaries of the private levy (article 2 of Directive 2001/29 / EC) :
- Authors, as far as their works are concerned,
- Performers as far as the fixation of their performances are concerned.
- The phonogram producers, in respect of their phonograms.
- The producers of the first fixations of films, in respect of the original and copies of their films.
- Broadcasters regarding the fixation of their broadcasts, transmitted by wire or over the air, including by cable or satellite.
Beneficiaries in respect to the collection of the private levy are the copyright collecting societies operating under the license of the Minister of Culture and representing all or some of the aforementioned categories of beneficiaries (Article 18 § 11 N. 2121/1993).
Persons liable for payment of the private levy are the importers or manufacturers of the relevant equipment, provided they are able to pass the actual financial burden to private users.
Collecting societies have the right to choose among those who have alternatively the obligation to pay and such a right may be repelled if another class of debtors has already paid the levy (Koumandos, ibid pp. 243-244, Kallinikou, ibid p. 185, Marino, ibid p. 188).
Technical Media Falling Under the Scope of the Private Levy
The technical media that are subject to private levies are those which are appropriate to use for private copying (Article 18 § 3 Law. 2121/1993). Indicatively, devices that are expressly subject to equitable remuneration are the following :
- Magnetic tapes or other physical artefacts suitable for the reproduction of image or sound and image, including digital reproduction devices (CD-RW, CD-R, DVD, Blu – Ray disks, mini discs, portable optical magnetic discs with a capacity of more than 100 million digits (over 100 Mbytes, mp3 players, usb & memory sticks, CD / DVD or other recorders, memory cards, external hard drives).
- Storage media / disks with capacity falling under 100 million digits (over 100 Mbytes).
- Photocopying machines and paper suitable for photocopying use.
- Multi-purpose devices with photocopying or copying capacity.
Technical Media not Subject to Private Levy
Member-states may at their own discretion exclude certain technical media from the imposition of the private levy (Article 5 § 2 a – b Directive), which in addition to their ancillary reproduction capacity may also have primary uses which serve fundamental freedoms, on the condition that a balanced and proportional approach of the conflicting rights and legitimate interests of the different categories of beneficiaries / debtors is followed (paragraph 31 of the Directive).
Until recently, the Greek law on the private copying levy did not expressly apply to personal computers and their accessories and printers (see Athens First Instance Court 4292/2013). Furthermore, any devices or components that operated in conjunction with PCs (but are not integral to them), were subject to equitable remuneration only if they were used solely for digital reproduction or digital transcription to or from analogue media.
The inclusion of personal computers within the scope of the private levy had been abolished by article 14 § 1 of the Law 3049/2002, as amended by Article 10 para. 33b of Law 3207/2003, on the grounds that such inclusion did not yield the desired outcomes and that therefore, such a removal was necessary for reasons of public interest (Supreme Court dec. 40/1998, ELD 40.46), which relate to the constitutional requirement for the facilitation of access to the information society and (see opinion Dimitrios Tsatsos – Xenophon Kontiadis). In particular, the abolition of the private levy obligation in respect of private computers purported to open to relevant market to the general public and facilitate access to the information society, whereas such an obligation was maintained and expanded for computer peripherals (Athens Second Instance Court 6252/2004).
On December 23th, 2015, the Ministry of Culture launched a public consultation on copyright collective societies. Article 69 para. 2 of the proposed bill stated that importers [and producers] of computers would be burdened by a 2% on their imported price in favour of right holders, which would be collected by copyright collective societies. The clause mentioned above effectively included computers within the scope of the private copying levy, which had been until now explicitly excluded by the foregoing 2002 law. The EU law on the matter leaves such an issue at the discretion of member-states.
Article 54 of the new 4481/2017 Act amended article 18 § 1-3 of the 2121/1993 Copyright Act, so as to explicitly include computers, such as desktops, laptops, tablets and smartphones, to the devices which are subject to the private copying levy. However, the new law includes computers in its scope on the condition that they have RAM above 4GB. The new law does not have a retroactive effect and, therefore, any such levy on computers is applicable only after its coming in force on 20.07.2017, thus ending in essence any litigation on the issue between importers and copyright collective societies.
The Amount of the Private Levy
In Greek law, after the new 4481/2017 Act, the amount of the private levy in each category of devices is as follows :
- PCs, smartphones and tablets with RAM above 4GB : 2% calculated on their import value or value sold from factory.
- Devices, machines and storing media with storing capacity below 1TB : 4% calculated on their import value or value sold from factory.
- Devices, machines and storing media with storing capacity above 1TB : 6% calculated on their import value or value sold from factory.
In the event that the payment of equitable remuneration selected by the importer, be it import or intra-Community acquisition, the levy is calculated on the basis of its value indicated on the invoice of the foreign corporation. The fee is payable three (3) months from import of the relevant equipment (article 18 § 10 N. 2121/1993).
The existence of multiple functions and the subordinate nature of the operation associated with reproduction has to be taken into account in respect to the amount of the private levy. In specific, such amount should be determined by member – states in proportion to the relative importance of the ability of the relevant equipment to make reproductions of works for private use (CJEU, March 5, 2015, Case C-463/12 , Copydan Båndkopi at Nokia Danmark A / S, paragraph 27). In addition, in cases that the reproductive capacity is proven in practice not to be utilised by end users, the fact that such capacity is available may not suffice to give rise to the private levy obligation to the extent that the damage incurred to beneficiaries is considered as insignificant (CJEU, March 5, 2015, case C-463/12, Copydan Båndkopi at Nokia Danmark A / S, paragraph 28).
According to the Padawan decision any member – state system which imposes private levies on a fixed percentage, as is the case of Greece, is investigated in regard to its compatibility with European Union law, since it does not take into account the technical characteristics and the appropriateness of each separate equipment in relation to its reproductive and storage capacity.
Furthermore, the private levy for each equipment suitable for reproduction, which is put into circulation within the European single market, is owed only once. Any entity having paid the levy in a member – state, which is territorially not competent, may request for its return, in accordance with national law, in order to avoid the phenomenon of paying the levy twice (CJEU, Amazon decision, paragraphs 62-65).
Procedure for the Collection of Private Levies
Every obliged entity under the law has to register a statement at the State Copyright Agency every trimester on the quantity and value of imported or produced products burdened with the levy. The relevant obligation of WIND Hellas for the first filing of such a statement is due on 31.12.2017 for the 3rd trimester of 2017. The same statement has to be registered within month upon request by any copyright collective society (Article 18 § 4a N. 2121/1993). Collecting societies are not entitled to request from the same debtor to submit a new declaration before the lapse of at least six (6) months after of the last submission (Article 18 § 5 N. 2121/1993).
In case that the debtor fails to comply with the obligation to submit the declaration referred to above, s/he may be ordered to do so by court decision (Article 18 § 6 N. 2121/1993). If the debtor, within twenty (20) days of publication of the court decision does not comply with the obligation to submit the statutory declaration imposed on him, regardless of any other sanction, the time limit of six (6) months is removed and the relevant collecting society is entitled to require the submission of a statutory declaration every month (article 18 § 7 Law. 2121/1993).
Each collecting society has the right to request at its own expense the verification of the accuracy of the content of any declaration by an auditor appointed by the National Copyright Agency. If the debtor refuses to comply, the execution of the verification may be ordered by court. The auditor’s report shall be submitted to the National Copyright Agency and each collecting society is entitled to receive a copy thereof (Article 18 § 8 N. 2121/1993).