Digital private copying levy in Spain

18 July 2008

Miguel Angel Rodríguez

In Spain, individuals can legally take copies of works protected by copyright, if intended for their private use. However, manufacturers located in Spain, importers and distributors have to pay a levy for certain equipment that could be used to copy this equipment. A new Spanish regulation has been introduced detailing the compensation that must be paid.

During the last election campaign for the Spanish Congress and Senate, the digital copying levy was a key issue. The socialist candidate supported the levy, whilst the conservative candidate sought to have the levy abolished.

After the socialist Partido Socialista Obrero Español won the elections and Prime Minister Zapatero renewed his mandate, the Regulation on digital private copying levy was passed. This entered into force on 1 July 2008. This sets out, on a case by case basis, the specific amount of compensation. A summary of which has been set out below:






























Equipment


Levy


Equipment suitable to make copies of books and publications


from €7,95 to €227 (according to their specifications, e.g. copy speed).


CD recorders


€0,60.


DVD recorders


€3,40.


Blank CDs


€0,17 (CD-R) or € 0,22 (CD-RW).


Blank DVDs


€0,44 (DVD-R) or €0,60 (DVD-RW).


External memory cards (e.g. USBs):


€0,30.


MP3 and MP4 players:


€3,15.


Hard disks integrated in equipment other than computers


€12.


Hard disks integrated into computers, as well as DSL connections and other Internet access equipment, are not yet subject to the levy. However, external hard disks and external storage units are subject to the levy.

Probably the most significant innovation of the new Regulation is that mobile phones, with the storage capability and the ability to play phonograms are subject to the levy for the first time. Local representatives of the main phone manufacturers have not been receptive to this change. This may be understandable where most of the telephone equipment sold in 2007 was mobile.

Future developments

It is likely that there will be much dispute relating to digital private copying. Most of the right holders are in favour of the levy, arguing that it protects culture and the dignity of creators. Producers, on the contrary, are concerned that the levy would be viewed by customers as a flat fee entitling them to share large amounts of P2P file sharing of musical and/or audiovisual works. However, they will not waive the right to keep their share of the levy. Manufacturers, importers and distributors are absolutely against the levy, as are consumers’ associations.

It is likely that the Regulation will be challenged before the courts. One likely ground of challenge is that the financial levies have been put forward without taking into consideration the storage capacity of the devices. The capacity for storage has always been related to the damage that copies for private use may cause. This has been the main rationale for the existence of the levy. From this perspective, different levies for devices of similar capacity could also arguably be unfair.

The final ruling of any court is likely to be controversial and could lead to some parts of the Regulation being repealed. However, as any court decision is unlikely to have retrospective effect these levies will have to be paid in the meantime.