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progressive collapse of the legal system that regulated remuneration
compensation for private copying has caused unusual cases. Thus we consider
the case of the Judgment of the Spanish Supreme Court of March 6, 2015,
that has determined whether mobile phones and memory cards are
subject to the payment of compensatory remuneration, the amount and the application of
The doctrine Padawan. To do this, they have a broken regulation, reduced to
general principle of submission of devices suitable for recording. In view of
In this situation, the judicial body has decided whether when the damage exceeds the threshold
minimum to be compensable, the fee to pay and the Padawan effect in these
devices. A proactive court that contrasts with the regulator in
withdrawal.
En
June 2008, the Spanish government approved a Order in which the
digital media and devices subject to payment of remuneration
compensation for private copying. It was an expected norm since, in 2006, the
legislator approves the current text of the Intellectual Property Law. In his
text announced the future publication of this list of devices for
incorporate the private copy system in digital devices.
June 2008, the Spanish government approved a Order in which the
digital media and devices subject to payment of remuneration
compensation for private copying. It was an expected norm since, in 2006, the
legislator approves the current text of the Intellectual Property Law. In his
text announced the future publication of this list of devices for
incorporate the private copy system in digital devices.
This
regulation seemed the definitive adaptation of the system for private copying to the
new digital environment, but it became the prologue to a succession of
Dramatic changes occurred in the private copying system in Spain.
regulation seemed the definitive adaptation of the system for private copying to the
new digital environment, but it became the prologue to a succession of
Dramatic changes occurred in the private copying system in Spain.
La
The aforementioned order would succumb with just two and a half years of existence, as it was
declared void for formal reasons by a Judgment of the National Court
dated March 22, 2011. Sentence that would later be confirmed by the
Supreme court.
The aforementioned order would succumb with just two and a half years of existence, as it was
declared void for formal reasons by a Judgment of the National Court
dated March 22, 2011. Sentence that would later be confirmed by the
Supreme court.
By
Lastly, the State in December 2011 would end up repealing the regulation copy
private and replacing it with a public payment to the beneficiaries of the
compensation.
Lastly, the State in December 2011 would end up repealing the regulation copy
private and replacing it with a public payment to the beneficiaries of the
compensation.
En
this transition, problems have remained unresolved and what is, without a doubt,
unique, without regulations to apply, leaving an unusual space for
intervention of the courts, and the application of variable rule of law
equity.
this transition, problems have remained unresolved and what is, without a doubt,
unique, without regulations to apply, leaving an unusual space for
intervention of the courts, and the application of variable rule of law
equity.
In 2009, the largest management entity
Spanish, SGAE, had formulated in its name and on behalf of the
music producing entities and artists, claim against the companies NOKIA and
SONY regarding the amount owed for the phones and memories that these companies
had sold in the last half of 2008.
Spanish, SGAE, had formulated in its name and on behalf of the
music producing entities and artists, claim against the companies NOKIA and
SONY regarding the amount owed for the phones and memories that these companies
had sold in the last half of 2008.
La
The lawsuit claimed the simple application of the aforementioned Order of 2008. In that
At the time, it was a simple claim for an amount
The lawsuit claimed the simple application of the aforementioned Order of 2008. In that
At the time, it was a simple claim for an amount
When
The Courts examined the case, the situation had radically altered.
The administrative regulation that
subject to payment for mobile phones
with the capacity to record phonograms at a fee of 1,1 euro cents and
memory cards at 0,3 cents. And it can be said that the subjection itself
of telephones to payment had been left up in the air.
The Courts examined the case, the situation had radically altered.
The administrative regulation that
subject to payment for mobile phones
with the capacity to record phonograms at a fee of 1,1 euro cents and
memory cards at 0,3 cents. And it can be said that the subjection itself
of telephones to payment had been left up in the air.
De
In fact, the judgment of the trial judge chose to reject all the requests
of the creditors, since the claim was based on a rule that had been
declared contrary to the Directive 2001/29.
In fact, the judgment of the trial judge chose to reject all the requests
of the creditors, since the claim was based on a rule that had been
declared contrary to the Directive 2001/29.
Only in the second instance and in the appeal
which will give rise to the pronouncements of the Supreme Court, the
background issues.
which will give rise to the pronouncements of the Supreme Court, the
background issues.
TRES
These are the issues of special relevance that arise in the judicial debate. The first and, perhaps, most
interesting for its legal examination had to do with the possible application of the
concept of minimum damage and, consequently, the lack of obligation to
payment for mobile phones claimed due to reduced capacity
memory that they offered then. The second was about the consequences
this claim for the cancellation of the mutual system. Were they subject to
Do I pay for all mobile phones or only those sold to individuals? The third had
to do with the amount of remuneration. If the rule that established the amount
per device lacked validity, how to establish the remuneration system.
These are the issues of special relevance that arise in the judicial debate. The first and, perhaps, most
interesting for its legal examination had to do with the possible application of the
concept of minimum damage and, consequently, the lack of obligation to
payment for mobile phones claimed due to reduced capacity
memory that they offered then. The second was about the consequences
this claim for the cancellation of the mutual system. Were they subject to
Do I pay for all mobile phones or only those sold to individuals? The third had
to do with the amount of remuneration. If the rule that established the amount
per device lacked validity, how to establish the remuneration system.
Regarding minimal damage, it is interesting to observe how the Spanish court applies the technique
of the presumptions that the CJEU has developed in relation to copying
private to achieve minimum damage. Yes to be a creditor to the
compensation, it is enough to show the possible damage, the Court points out, in
reverse sense, that “that if there is no possible damage or it deserves the
minimum consideration, equitable compensation is not applicable".
of the presumptions that the CJEU has developed in relation to copying
private to achieve minimum damage. Yes to be a creditor to the
compensation, it is enough to show the possible damage, the Court points out, in
reverse sense, that “that if there is no possible damage or it deserves the
minimum consideration, equitable compensation is not applicable".
The Supreme Court confirmed the reasoning of the
lower court ruling and admitted that mobile phones should be exempt from payment due to their limited storage capacity. The same
time, rejected his application regarding the cards given that his ability to
recording would exceed 600 songs per unit.
lower court ruling and admitted that mobile phones should be exempt from payment due to their limited storage capacity. The same
time, rejected his application regarding the cards given that his ability to
recording would exceed 600 songs per unit.
Professional use and private uses
Sony and Nokia submitted to the Supreme Court that the
application of the Padawan doctrine was to lead to the exclusion of payment of
memory cards sold to companies.
application of the Padawan doctrine was to lead to the exclusion of payment of
memory cards sold to companies.
His claim was not accepted, understanding that when the
devices have been made available to natural persons without restriction
for your personal use,It is not necessary to verify in any way that these have
effectively made private copies through those (considering 54)…”
according to the Padawan Ruling.
devices have been made available to natural persons without restriction
for your personal use,It is not necessary to verify in any way that these have
effectively made private copies through those (considering 54)…”
according to the Padawan Ruling.
The compensatory amount
According to
the debtors, Nokia and Sony, the disappearance of the Order that established the amounts
to pay for each device determined the impossibility of establishing a
condemnation to payment, setting specific amounts.
the debtors, Nokia and Sony, the disappearance of the Order that established the amounts
to pay for each device determined the impossibility of establishing a
condemnation to payment, setting specific amounts.
La
Second instance ruling (and later the Supreme Court), despite recognizing that said order
administrative had been declared null, applied the amounts that therein
were contemplated to condemn the
memory card manufacturing companies.
Second instance ruling (and later the Supreme Court), despite recognizing that said order
administrative had been declared null, applied the amounts that therein
were contemplated to condemn the
memory card manufacturing companies.
El
The Judge assumes the task of specifying the damage and to do so, nothing prevents him from relying even on the criteria
quantitative aspects of the annulled norm, since - in his opinion - there were no doubts
on the equity of the amounts that said rule established.
The Judge assumes the task of specifying the damage and to do so, nothing prevents him from relying even on the criteria
quantitative aspects of the annulled norm, since - in his opinion - there were no doubts
on the equity of the amounts that said rule established.
The Supreme Court in this case has not wanted to follow numerous
cases in which the courts have refused to assume the role of regulator and, as
applicators of the standard, wait for the competent body to complete the apparatus
normative. It is undoubted that the right of the creditors must have weighed in his mind, but it is also true that this order applied subject the payment to
mobile phones that the Court, on the contrary, exonerates.
cases in which the courts have refused to assume the role of regulator and, as
applicators of the standard, wait for the competent body to complete the apparatus
normative. It is undoubted that the right of the creditors must have weighed in his mind, but it is also true that this order applied subject the payment to
mobile phones that the Court, on the contrary, exonerates.
__________________________________
La
The regulation of private copying is contained in two brief precepts of the
Directive 2001/29/EC. Few texts like this have raised a cascade
appellant of issues before the Court of Justice of the European Union. Their
resolutions are chiselling the private copy model at the stroke of a resolution
applicable in Europe. And, from the example that has been presented in this article, it
The same thing happens at the local level. All of this reveals an astonishing negligence on the part of the regulator.
for assuming their obligations, definitively abdicating this figure for the
compensation of the creative industries or reconfiguring it in a way
accurate so that it is not subject to constant doubt in its application. For him
time elapsed, it can be said that this last initiative is ruled out
and the fate of this institution will depend on whether the courts get it right.
fulfill the task of the legislator with their decisions.
The regulation of private copying is contained in two brief precepts of the
Directive 2001/29/EC. Few texts like this have raised a cascade
appellant of issues before the Court of Justice of the European Union. Their
resolutions are chiselling the private copy model at the stroke of a resolution
applicable in Europe. And, from the example that has been presented in this article, it
The same thing happens at the local level. All of this reveals an astonishing negligence on the part of the regulator.
for assuming their obligations, definitively abdicating this figure for the
compensation of the creative industries or reconfiguring it in a way
accurate so that it is not subject to constant doubt in its application. For him
time elapsed, it can be said that this last initiative is ruled out
and the fate of this institution will depend on whether the courts get it right.
fulfill the task of the legislator with their decisions.
NB. Spanish version of the article published in the Kluwer Copyright Blog
