Reprography remuneration now also for printers and prints?

This remuneration compensates the loss of the holders of protected works for the exception in the Copyright Act that allows, under certain conditions and for specific purposes, copying of protected works without the consent of the authors.

The European Court of Justice has recently ruled on a question by Germany concerning whether the reprography remunerations also applies for “printing” of protected works using a “printer” on paper (prints).

Let us briefly recall how reprography works.  The basic principle of copyright law is that explicit prior consent from the author is needed for every reproduction of a protected work.  This is obviously practically unfeasible, and therefore the Copyright Act provides for some exceptions where it is legal to copy without the author’s prior consent.  These exceptions to the general rule that permission must be asked are strictly regulated and must be paid for.

One of those exceptions is that it is allowed to take a copy of an article, photograph, illustration or short excerpt from a book or score provided it is for personal use or for internal professional use or to illustrate teaching or scientific research.  There must be ensured that the “normal exploitation" of the work is not compromised.  Additionally, copying entire publications is not permitted and is not covered by the exception.  Also making too much copies of a short fragment of a book, photograph or article does not fall under the exception.

The remuneration for copying without permission of the author, called the reprography remuneration is twofold.  On the one hand, on each copier pay a fee must be paid (a standard fee).  This is a copyright fee that each manufacturer, importer or purchaser within the European Union pays on any device that can copy protected works.  The manufacturer will pass on that fee to the purchaser of the machine.

On the other hand any business or institution that make paper copies or puts copying machines at the disposal of others pays a fee for the copying of copyrighted work (a proportional fee).  This fee is based on an assessment by the company (that must do a declaration) of the number of copies of protected works.  This is assessed on the basis of a number of parameters such as the number of staff of the company.

In Belgium Reprobel is the only organisation that may collect reprography remunerations.  The judgment of the European Court of Justice of June 27, 2013 now seems to extend the possibility for Reprobel to levy a reprography fee.  In its judgment, called the “Kyocera judgment”, the Court answered a number of questions that were asked by the German Supreme Court, following a dispute between the German management company for reprography and a number of manufacturers of copiers. More specifically, the Court was asked how the phrase "reproduction using a photographic technique or by some other process having similar effects " in Article 5.2.a of Directive 2001/29 (Directive copyright and related rights) should be interpreted.

In its judgment, the Court confirmed that a reprographic reproduction on paper (e.g. a print) and reproductions also include reproductions manufactured using a printer and a PC.

As a result of this judgment, in addition to a fee for copies and copiers, also a fee for printers and prints becomes possible.

Also interesting is that the Court also stated in this same judgment that even if the author or the publisher of a work have given permission for the reproduction of a work, for example, through a contractual arrangement, the user should still pay a reprographic remuneration for the statutory exceptions. The consent of the author says does not matter in that respect ...