Back to the issue of the private copying exception, AG Cruz Villalón has issued an opinion stating that private copying levies may be imposed on memory cards for mobile phones.
The reference is from the Danish High Court and follows a request from Copydan Båndkopi, a Danish collective rights management organisation, to Nokia to pay c. EUR 2 million as a private copying levy in respect of the reproduction of content (music and videos) on mobile phone memory cards. Nokia refused, and in the ensuing litigation questions were referred to the CJEU regarding the imposition of private copying levies, including (1) whether it is compatible with the Directive to apply levies to mobile phone memory cards where private copying either is or is not one of the primary or essential functions, and also where no levies are applied to internal memory such as MP3 players or iPods which are designed/used for private copying, (2) what would constitute "minimal" prejudice to the rightsholder under recital 35 of the Information Society Directive, and (3) the effect of any technological protection measures.
The opinion is not available in English and no press release has been issued. Nonetheless, according to press reports, the Advocate General stated that:
· In principle it is not contrary to Art 5(2)(b) to impose a balanced levy on mobile phone memory cards. However, it is not be compatible with the Directive to impose a levy on mobile phone memory cards and at the same time exclude non-removable media for integrated devices or equipment specifically designed and used primarily for private copying, unless this is objective justified.
- Following the ruling in ACI Adam, the private copying exception only applied to reproductions from legitimate sources.
- Technological protection measures should not have any effect on the calculation of the levy.
- In principle the Directive allows levies to be collected from producers and importers of devices, provided it can be passed onto the users of the devices.
As highlighted previously, private copying levies are applied in the majority of the EU Member States, therefore the CJEU's ultimate decision will be of importance to the mobile phone market. It remains to be seen to what extent the CJEU will follow this opinion, given that it has dispensed with or departed from the AG's opinion in a number of recent IP cases.