Publishers Not Entitled To Compensation Under Reprography Exception, EU High Court Rules

European reproduction schemes for compensating authors don’t cover publishers, the European Court of Justice said in a 12 November judgment in Hewlett-Packard Belgium SPRL v. Reprobel SCRL and Epson Europe BV.

The judgment is available here.

Belgian collecting society Reprobel said the ruling doesn’t preclude EU countries from setting up separate royalties for publishers. The International Federation of Reproduction Rights Organisations (IFFRO), however, said the decision runs counter to well-established collective rights management practices.

The case arose from a dispute between HP, which imports copying devices for business and home use, including “multifunction” devices which print documents at different speeds depending on print quality, the ECJ said. In 2004, Reprobel, which collects and distributes money corresponding to fair compensation under the reprography exception asked HP to pay a levy on each multifunction printer sold in Belgium.

When the parties failed to agree on a rate, HP sought a court ruling that no remuneration was owed on printers it offered for sale or, alternatively, that the remuneration it had paid corresponded to the fair compensation owed under Belgian law implementing EU Directive 2001/29 on the harmonisation of certain aspects of copyright and related rights in the information society.

Reprobel sued HP seeking payment of 1 euro towards payments the collecting society believed the device-maker owed under national law. When the Brussels Court of First Instance held that the relevant provisions of Belgian law didn’t align with EU law, the Belgian Court of Appeal sought clarification from the ECJ.

That court ruled that “fair compensation” under the directive must distinguish between reproduction carried out by any user versus copying by a natural person for private, non-commercial use. The ECJ further held that the directive bars national measures, such as the Belgian law in question, which authorises part of the fair compensation due rights owners to be given to the publishers of works created by authors, because publishers have no obligation to ensure that the authors benefit even indirectly from some of the compensation of which they were deprived.

Moreover, said the high court, governments can’t create a remuneration system such as Belgium’s, which requires the makers, importers or buyers of copying devices to pay a lump-sum royalty and also mandates proportional remuneration to be paid after the copying takes place in the form of a unit price multiplied by the number of copies made.

The ECJ faulted the Belgian regime for calculating the lump-sum payment solely on the basis of the speed at which a particular device can produce copies; permitting the proportional post-copying remuneration to vary according to whether or not the person liable for payment had cooperated in recovering the royalty; and lacking mechanisms that allow complementary application of the criterion of actual harm suffered and of harm established as a lump sum based on different categories of users.

Although the ECJ held that, as a rule, the law can’t assign part of the royalty due authors to publishers, the court “seems to leave the door open for the national legislator to provide a separate compensation for publishers – outside the scope of the Directive – with a view to compensating the proper harm suffered by the latter as a result of the reprography exception” as long as it doesn’t prejudice authors’ right to remuneration, Reprobel said.

The ruling makes it clear that the “European copyright framework in the field of both reprography and private copying in the text & image sector is in urgent need of clarification,” said IFFRO.

It pressed the European Commission and Parliament to review the relevant articles of the directive “with an aim of maintaining fair and adequate compensation for both authors and publishers for usages of their works and publications” under the exceptions.