Note of the lawyer (member EXGAE, now Xnet) that won the case:
In a ruling released today, Thursday October 21st, 2010, the European Court of Justice has ruled that the indiscriminate application of the digital canon or levy in Spain is not in line with European Legislation:
The Court deems that there must necessarily be a link between the application of the levy for private copying and actual usage for the purpose of making private copies. Thus, the levy cannot be applied to all blank recording CDs and DVDs and other digital media and players, but only to those which could supposedly cause damages to authors protected by copyright.
Professionals, companies and public institutions are thus directly excluded from the obligation to pay the canon. In addition, royalties collection societies shall not be able to charge private users for equipment, appliances and media that cannot be used for private copying, as they have been doing to date. The ruling cites the above cases as an exception, but there is no reason why they should be the only ones.
Nevertheless, the ruling allows the levy to continue to be charged to private users on purchase of appliances and media that can potentially be used for private copying. Even so, we understand that as a presumption is involved, there must be a mechanism through which the individual can prove non-usage of these media for private copying, and as such be exempt from the canon.
There is no doubt that the digital canon is illegal, and the Spanish state must cease to apply as it has done until now.
This ruling also opens the door to requests for the annulment of all rulings that have obliged legal entities to pay the canon, and for citizens to demand that the government introduce a new system of compensation for private copying that is not applied abusively and indiscriminately.
That’s why the main congress of free/libre authors rights, the FCFORUM 2010 which is held in Barcelona from the 28th of October, whithin a brief week, will widely cover the TJUE’s ruling and the measures to take for preventing that the new model do not collect, in favor of the collecting societies, for authors that should have never collected for them.
Josep Jover Padró
Note: the verdict and future consequences will be discussed next week at the FCForum with the lawyer and other parts involved