On June 11, 2015, the Advocate-General (AG) Pedro Cruz Villalón delivered his Opinion in Case C-572/13, Hewlett-Packard Belgium v. Reprobel. The case, which is still pending before the EU Court of Justice (CJEU), raises, inter alia, an important issue, namely: “Is it permissible for a national copyright law to allocate a portion of the fair compensation for reproductions exempted under Article 5(2)(a) and (b) of the 2001/29 Information Society Directive directly to publishers, although they are not listed among the initial holders of the reproduction right under Article 2 of the Information Society Directive?” While the Opinion of the AG is non-binding, the CJEU is expected to publish its decision by the end of 2015.
IFRRO has noted the opinion of the European Copyright Society regarding the reference to the CJEU in Case C-572/13, Hewlett-Packard Belgium v. Reprobel. Although we would have liked to comment on several points raised in that document, we limit our observations to the right of publishers to receive a share of the collected remuneration / compensation for the use of text- and image-based (TI) works.
We hold that the opinion expressed by the European Copyright Society regarding the publishers’ share is unsubstantiated. It conflicts with the international legal framework (including the Berne Convention, and especially the three-step-test laid down therein), and breaches longstanding legal and contractual arrangements between authors and publishers. Moreover, it is contrary to arrangements and traditions established and practised since the first establishment of collective rights management in the TI sector – the Reproduction Rights Organisations (RROs) – more than 40 years ago, regardless of the system under which they operate. The fundamental basis of collective rights management in the TI sector is that both authors and publishers are entitled to receive a portion of the remuneration / compensation. This is also consistent with the IFRRO Statutes, which require that RRO members represent both authors and publishers, and that these grant both categories of rightholders adequate representation on their governing bodies. In this vein, numerous IFRRO submissions to the European Commission on draft legislation, which led to the adoption of the EU Information Society Directive 2001/29 in 2001, uncontestedly, referred to ‘rightholder’ as a generic term for authors and publishers, who should both be entitled to a part of the remuneration / compensation when copies are made from an already published work.
The complete IFRRO comments regarding the European Copyright Society’s opinion on Case C-572/13 are available here.