Editor's note: "Italian copyright law" Set up "Private copy fair compensation mechanism" , Can be used by a pair "Private copy" The equipment and tools collect taxes in a way that compensates the copyright holder for the loss caused by private copying. In this context, There are already several manufacturers of recording equipment, Mobile phone, Manufacturers of personal computers and cameras appealed, Demand that the law be repealed. Read on for more details!

[background]

"Italian copyright law" Set up "Private copy fair compensation mechanism" , Can be used by a pair "Private copy" The equipment and tools collect taxes in a way that compensates the copyright holder for the loss caused by private copying. In accordance with the compensation mechanism, Although it is the natural person performing the private copying act who ultimately bears the tax liability, But it was actually first made by the manufacturers of equipment and tools, Importers and distributors pay taxes, The tax is then added to the selling price when it is sold to the end user. If the end user is not using these devices and tools to perform private replication activities, To the Italian Association of Authors and Publishers (SIAE) Ask for a refund of the tax paid.

but, Manufacturers or distributors of equipment and tools shall not avail themselves of the above "Compensation refund mechanism" , Only by signing an agreement with the Italian Association of Authors and Publishers, Exemption from tax payment obligation. Italian law, The Italian Association of Authors and Publishers has the right to enter into agreements with relevant trade associations, Negotiate whether to pay taxes.

In this context, There are already several manufacturers of recording equipment, Mobile phone, Manufacturers of personal computers and cameras appealed, Demand that the law be repealed. The reason is that, This legal requirement is not met "Private copy" Conditional person (Legal person) They also have to pay taxes, It also gives the Italian Authors and Publishers Association the right to unilaterally decide who is exempt from paying the tax and ask for a refund of who has already paid the tax, Contrary to EU law.

The Italian Council of State suspended the proceedings, The Court of Justice of the European Union, To confirm whether the following two provisions contravene EU law:

(1) Allow the monopoly of copyright management of the state agency unilateral formulation "Prior immunity" standard, Exempt equipment and tools not used for private copying from the obligation to pay taxes; and,

(2) Stipulate that only (Equipment and tools) End user of, Manufacturers or distributors are not included, You can claim a refund of taxes paid?

[discover]

To settle the case, In its ruling, the court cited its recent involvement "Private copy reasonable compensation" The set of principles established in the case:

(1) "Private copy reasonable compensation" , It is required that the natural person who finally implements the act of private copying shall assume the obligation of compensation for the loss caused to the corresponding right holder by the act, But allow a law to require middlemen for equipment and tools (producer, Dealers and importers, And so on) Undertake the obligation of compensation in advance, As long as the law also provides that such compensation can be claimed against the end user.

(2) If a compensation mechanism provides for the imposition of total compensation regardless of the ultimate purpose of use of equipment and tools, Eu law requires that the mechanism should also provide for speed, Simple and effective procedures for refunding unchargeable parts.

(3) The compensation mechanism shall not apply to the use of equipment, Machines and tools, etc "Private copy" Irrelevant copying behavior of non-natural person users. In this case, Italy does not provide a compensation mechanism that meets these requirements, Non-provision is not for implementation "Private copy" Equipment and tools are exempt from compensation tax, Instead, it stipulates that only an agreement with the association of Italian authors and publishers can waive the obligation, This is a discriminatory clause against producers and distributors who do not sign the agreement. Therefore, The Court of Justice of the European Union stated, To sign an agreement with the national copyright collective Management Association as a condition for exemption from the obligation of compensation, It violates the principle of equal treatment for dealers and manufacturers in the same situation. Such a system of exemption from the obligation to compensate, A general application clause should be added, Set out objective and transparent conditions for application. The Court further stated that, If a law provides for a system that allows only the end user, not the middleman, to claim a refund of the compensation tax already paid, Objective exemption mechanisms for middlemen should also be provided for, Otherwise, the law violates EU law.

[comment]

The ruling includes several previous ones by the European Court of Justice "Fair compensation for private copying" The verdict of the case. 2010 years 10 month 21 day "Padawan" case (Case number: C-467/08) , 2011 years 6 month 16 day "Stichting de Thuiskopie" case (Case number: C-462/09) , 2013 years 7 month 11 day "Amazon International" case (Case number: C-521/11) , 2015 years 3 month 5 day "Copydan" case (Case number: C-463/12) , 2016 years 6 month 9 day "EGEDA" case (Case number: C-470/14) , Until adjudication of the case, Have made clear a principle: A real and effective system should be established, Either exemption is not implemented "Private copy" The act of the user or distributor is not intended for "Private copy" Purpose of the equipment or tools of the middleman's compensatory obligations, Or allow them to claim back the compensation they have already paid.

author: Patricia MARISCAL, Associate partner at Esaberi

compile: Li Fangqian, Esaberi intern proofread: Liu Dan, Esabarry Legal Counsel

source: Esabaril (ELZABURU) Intellectual property rights