La decadencia de una forma de turismo específico.

Article 5(2)(b) of the InfoSoc Directive provides Member States with the option to enact an exception for reproduction on any medium made by natural persons for private uses and for purposes that are neither directly or indirectly commercial. Right-holders are entitled to receive fair compensation for such non-authorised private copying activities. Compensation schemes have to take into account TPMs to the extent that they may restrict or control private copies made by end-users (for further details on the legal aspects of this exception see Section II.1.5.2). It is worth stressing that the InfoSoc Directive does not provide for a right to private copying.244

243 _{The authors Labert et al. mention the case of Claes Oldenburg and Coosje van Bruggen, two} sculptors who claimed a copyright infringement under the US law and obliged the Wikimedia Foundation to take down from Wikipedia the pictures of their sculptures, although these sculptures were permanently placed in public spaces in several countries (Labert et al., 2015).

244 _{Both the Brussels Court of Appeal (Belgium) and the Cour de Cassation (France) stated that the} private copying exception does not constitute an enforceable right for private users. See European Commission (2007), Report to the Council, the European Parliament, and the Economic and Social Committee on the Application of Directive 2001/29/EC on the Harmonisation of Certain Aspects of Copyright

All Member States implemented the private copying exception under Article 5(2)(b) of the InfoSoc Directive. The only deviation is represented by Ireland where a narrow exception applies only to copies of broadcasts for the purpose of time shifting (i.e. later viewing) that are made by natural persons or certain establishments and to copies of performances made by natural persons for private and domestic uses. National transposition considerably varies among Member States (see Annex A). In France, copies are allowed for strictly private purposes; this exception applies only to natural persons and does not cover file- sharing. In Germany, private copying comprises domestic and personal purposes as well as other ‘own’ uses beyond the private sphere such as scientific purposes, ‘own’ archive and information about current events. While in the private sphere copies can be made only by natural persons or by third parties on behalf of the privileged person, copies for ‘own’ uses can be made also by legal entities. The German exception allows both digital and analogue copies as long as they come from a lawful source and are not used for sharing files on the Internet. In Italy, the private copying exception covers only copies of phonograms and videograms245 _{made by natural persons for personal uses and without commercial purposes} and can be restricted by contractual arrangements; these copies cannot be made by third parties and have to come from a legal source. In Poland, private uses (which include but are not limited to single copies) are permitted to a larger group of beneficiaries, including circles of persons having personal relationships (e.g. consanguinity), affinity or social relationships. The exception under Article 5(2)(b) has been recently introduced also in the UK246 _where personal copies of copyrighted works are currently permitted, provided that the concerned work is lawfully owned by the privileged person and copies are made for private use and for ends that are neither directly nor indirectly commercial; interestingly, ‘format shifting’ is explicitly permitted and contract terms aiming at preventing or restricting private copying are unenforceable.

As regards the fair remuneration condition expressly introduced by the InfoSoc Directive, both the UK and Ireland do not have any compensation scheme in force and remuneration for certain private uses is left to collective licensing agreements between right-holders and end-users. Interestingly, the UK is the only European country where the private copying exception is not accompanied by a right to fair remuneration, in stark contrast to the InfoSoc Directive247_{. The other surveyed countries have introduced levy schemes for private} copying which aim at compensating right-holders for the harm suffered when copyrighted works and other subject matter are copied without their authorisation (see Annex A). Levies are generally applied to blank carriers, devices with storage capacity and recording equipment and are paid by manufacturers and importers248 _{and collected by one or more} national collecting societies. Exports are either exempted ex ante or subject to an ex post

245 _{Copies on paper or a similar medium are included in the reprographic exception even when made} for personal use.

246 _{Up to the reform introduced in 2014, in the UK a narrow exception covered recording of broadcasts} for purposes of time shifting.

247 _{Interestingly, a UK court stated the UK government erred in law when introduced a new private} copying exception without a compensation scheme ensuring fair remuneration to right-holders. For further details see: Press Association (2015), “Music groups win court battle over private copying of CDs”, The Guardian, Friday 19 June (www.theguardian.com/business/2015/jun/19/music-groups- win-court-battle-private-copying-cds).

reimbursement scheme for paid levies. Generally levies do not apply to blank carriers and devices purchased for professional uses; accordingly, professionals may either benefit from an upfront exemption or apply for refunds. In Italy and Poland, methods of application and calculation are determined by a decree of the Minister of Culture; in France by a commission of stakeholders (including consumers’ organisations); in Germany by national collecting societies after negotiating with associations of manufacturers and importers. As a result, there are considerable differences across the EU in terms of level of remuneration, products subject to levies, and overall revenues (see Table 4).

Table 4. Levies on selected blank carriers and devices and revenues in a sample of Member States (2012)

France Germany Ireland Italy Poland

(% of the sale price) UK

CD-R (700MB) €0.35 €0.06 €0 €0.15 1.72% €0 DVD-RW (4.7Gb) €0.90 €0.27 €0 €0.41 2.95% €0 USB Key (16Gb) €1.60 €1.56 €0 €1.44 0.47% €0 External Hard Disk (500Gb) €11 €7 €0 €5 1% €0 Mobile (16Gb) €8 €36 €0 €0.90 n.a. €0 PC with CD/DVD writer €0 €17 €0 €2.40 3.28% €0 Revenues (2012) €173,877,725 n.a. €0 €71,738,387 €1,668,677 €0 Revenues per capita (2012) €2.65 n.a. €0 €1.18 €0.04 €0

Note: Due to national lawsuits, data on overall revenues for Germany are not available.

Source: Authors’ own elaboration on WIPO 2013.

In all the surveyed countries, in principle revenues and restrictions stemming from TPM should be taken into account when determining levies; in France individual licensing schemes should also be considered (see Section 1.5.2.4). Collected revenues are distributed, via collecting societies, to different categories of right-holders (e.g. authors, performers, producers, publishers) based on proportions that considerably vary among Member States (see Annex A). In some countries, such as France, Italy and Poland, a share of the revenues are allocated by law or according to the statutes of relevant collecting societies to social and cultural purposes.

According to the report resulting from the mediation on private copying and reprographic levies drafted by Mr Antonio Vitorino,249 _{the existing discrepancies among national levy} schemes are a source of frictions hindering the proper functioning of the Internal Market. In this respect, three major problems can be identified: i) double payments in cross-border transaction of levied products; ii) undue payments of levies by professional users; iii) uncertainty in the determination of the amount of levies as well as of media and equipment concerned. Mr Vitorino argued that, to some extent, solutions to these Internal

249 _{Vitorino, A. (2013), Recommendations Resulting from the Mediation on Private Copying and} Reprographic Levies, available at: http://ec.europa.eu/internal_market/copyright/docs/ levy_reform/130131_levies-vitorino-recommendations_en.pdf.

Market issues have been provided by the case law of the CJEU. In the Padawan case,250 _the CJEU stated that all media, equipment and devices capable of making copies of copyrighted content can be subject to levies, provided that they are used by natural persons for private uses. In addition, the CJEU explained that fair compensation has to be computed on the basis of the actual ‘harm’ caused to right-holders by the introduction of the private copying exception. In the Opus case,251 _{the CJEU concluded that the ‘harm’ to be compensated via a} levy scheme always occurs in the Member State where the final private user resides; hence levies should be collected only in the State where the end-user is based.

On paper, the majority of Member States have introduced ex ante exemptions or reimbursement mechanisms to avoid or mitigate both double payments in cross-border transactions and undue payments for professional uses. Nonetheless, these mechanisms are deemed very burdensome (e.g. reimbursement generate substantial administrative burdens and may take months or years) and/or non-functioning at all.252 _{As a result, levies} can still constitute a financial obstacle to cross-border trade of products subject to levies as well as unduly increase business costs of certain professional users. Interestingly, according to the CJEU, reimbursement mechanisms applied by Member States are a lawful alternative to ex ante exemptions, both for exports and for private uses, on condition that they are effective and do not make it excessively difficult to get refunded.253

Also, processes setting the levies are deemed cumbersome and, especially when it comes to new products, are able to paralyse the functioning of the market for devices and media in some Member States.254 _{In several EU countries, stakeholders have initiated lawsuits that} resulted in the adoption of provisional levies or in the introduction of levies with retroactive effects on certain categories of products. On the one hand, legal uncertainty increases commercial risks for manufacturers and importers that miss information on a significant component of the final price of the products they sell. On the other hand, long disputes to avoid or postpone payments also affect right-holders as the collection and in turn the distribution of levies can be substantially delayed.

2.3.10

Relationship between technological protection measures and copyright