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November 2010 - Intellectual Property. Legal Developments by Norrbom Vinding Law Firm, member of ius laboris.

More articles by this firm.

The ECJ has approved the use of ’blank media levies’ as a means to ensure that musicians and writers receive reasonable compensation when their works are copied by consumers.

In Denmark, copying a copyrighted work without asking the copyright holder's permission or paying them first has been legal for quite some time now. But it is only legal if the work  is copied for private use. In return, writers and film makers receive a royalty each time one of the blank media used for copying is sold (cassette tapes, CDs, DVDs, etc.). This arrangement is called blank media levies.   Blank media levies are also found in other countries. The system in Spain, for instance, resembles the Danish arrangement. The European Court of Justice recently delivered its judgment in a case about the compatibility of the Spanish arrangement with the Infosoc Directive from 2001. 

Yes to blank media levies
The ECJ approved the blank media levies in principle, noting that the arrangement ensures copyright holders receive ‘reasonable compensation' in return for consumers being able to copy their works for private use.   At the same time, the ECJ stressed the fact that blank media levies may be collected only from consumers who can be assumed to use a CD or DVD to copy works for private use. This is a result of the Infosoc Directive. Since the Spanish system of levies does not distinguish between private and commercial consumers, it was not compatible with the Infosoc Directive.

Norrbom Vinding notes:

  • that the Danish arrangement ensures that ‘blank' media are available to buy, particularly for commercial use, without users having to pay the levy, provided they have registered with COPY-DAN or ask to have the levy refunded within 3 months after buying the media; and
  • that it is debatable if the requirement that commercial enterprises must actively do something in order to avoid paying the levy is compatible with the spirit of the Infosoc Directive.