On September 10, 2014, the Spanish Supreme Court referred a question to the European Court of Justice related to the new copyright levy system. The debate has arisen in connection with the procedure for payment of copyright levies set out by the Royal Decree 1657/2012, which now regulates the payments by way of a charge to the general State budget. Despite the fact that the levy is still calculated on the basis of the damage effectively caused, it must be fixed within the limits of the national budget determined for each year.
The novelty of the Royal Decree lies not in the copyright levy regime, but in the method of compensating the relevant right holders. Whereas under the previous system, copyright levies were charged ultimately on the end-users, all taxpayers are now the ones committed to paying copyright levies, regardless of the use that each one has made of the private copy.
The main issue referred to the European Court is to determine if the copyright levy funded by the general budget is in accordance with article 5.2.b) of the InfoSoc Directive (Directive 2001/29). But, if the first question is answered in the affirmative (so the Royal Decree complies with the InfoSoc Directive), the Supreme Court also questions whether or not the final amount required for copyright levies must be fixed within the budget limits set out for each year. Thus, the Supreme Court is considering whether this system would mean a breaking of the “right balance” between the interests of the right holders and the users of private copies.
In conclusion, the copyright levy funded by the general budget, challenged since it was first established and only in place in Spain in Norway, will soon be confirmed or denied by the European Court of Justice.