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Bill Introducing an Act 1 Parliamentary Document 1667 — Case 870 Bill introducing an Act amending the Copyright Act No 73/1972, as amended (private copying) (As presented to the Althing at its 145th legislative session, 2015 to 2016.) Article 1 Article 11 is amended as follows: a. A new sentence is inserted after the first sentence of the first paragraph, to read as follows: However, the right to make digital copies is restricted to natural persons who lawfully possess, or can lawfully access, a source distributed or made accessible with the rightholder’s consent. b. The third paragraph is amended to read as follows: The authors of works which have been broadcast, made accessible to the public in a manner enabling individual persons to gain access to the works wherever, whenever and through whatever device they choose, or released as audio or audiovisual recordings, are entitled to fair compensation for the reproduction of the works for private use. The compensation is to be paid annually to collective management organisations from an appropriation in the National Budget. The payment should constitute a fair compensation for the reproduction of the abovementioned works for private use, and should be calculated as the following percentages of the customs value of tapes, hard disks, optical disks or other storage media, whatever their form, capable of being used to make analogue or digital recordings of sound or images, as well as of devices intended to be used to make such recordings for private use and which have been imported into, or manufactured in, Iceland in the past year: Percentage (%) of Tariff heading Description customs value 8523.2922–8523.2929 unrecorded magnetic tapes 2 8523.2912–8523.2919 unrecorded videotapes 2 8523.4112 og 8523.4113 optical disks 2 8523.5111 og 8523.5119 semiconductor memory devices (USB memory 4 keys) 8523.5211 og 8523.5219 chip cards (SD cards) 4 8471.3001–8471.4909 laptops, tablets and computers 1 8471.7000 external data storage units (external disk drives, 4 housings with in-built hard drives) up to 12 TB 2 8519.8110–8519.8990 sound recording apparatus 1 8521.1029 og 8521.9023 video recording apparatus 1 8527.1303 reception apparatus for radio broadcasting, with 2 sound recording apparatus 8517.1200 hand units for mobile telephone networks or 1 other wireless networks, with the capacity to record sound and images c. Paragraph 4 is amended to read as follows: The compensation referred to in Article 1, point b, is to be paid to collective management organisations which have been recognised by the Minister as competent to exercise such rights on behalf of authors. The organisations shall distribute the compensation to their member associations, after deducting a reasonable administration fee. The recognition of collective management organisations pursuant to this Article is governed by the procedural rules of Article 26a, fourth paragraph, and any rules issued on the basis thereof. The resolution committee set up pursuant to Article 57 shall, at intervals no longer than three years, review the basis used to calculate fair compensation pursuant to the third paragraph, and submit any proposals for changes to the Minister. d. The fifth and sixth paragraphs are deleted. Article 2 This Act shall come into force forthwith. Compensation pursuant to Article 11, third paragraph, should be paid for the first time on 1 March 2017. C o m m e n t a r y I. Introduction This bill was drawn up by the Ministry of Education, Science and Culture on the basis of the proposals of a working group appointed by the Minister of Education, Science and Culture to review the Regulation on the imposition of the copyright levy, No 125/2001, as amended. The bill proposes to pay fair compensation to authors from the National Budget, and to calculate it as a percentage of the customs value of certain digital recording media and equipment capable of being used for the private copying of material protected by copyright. Moreover, the bill proposes an amendment to remove all doubt that the right to make digital copies of protected material for private use will be restricted in the future to copies made from lawfully obtained sources. II. Reasons for and necessity of the legislation The reason for the review of Regulation No 125/2001 was the wish of rightholders to obtain a broadening of the basis on which the copyright levy is calculated, taking recent technical developments into account, such that the levy would be imposed with regard to all types of multifunction devices capable of being used to record and reproduce protected audio and audiovisual material, including mobile telephones, computers, external disk drives, hard disk drives (HDD) and similar equipment with audiovisual capabilities. As soon as the conclusions of the review were known, it became clear that legislative action would be needed to bring about the proposed changes. The presentation of the bill was announced 3 in the Government’s list of parliamentary business for both the 144th and the 145th legislative sessions. 1. Currently applicable legislation Pursuant to Article 11, first paragraph, of the Copyright Act, No 73/1972, natural persons have the right to make copies of copyright-protected works and material for private use, provided that the copying activity does not take place for commercial purposes. Regulation No 125/2001 contains more detailed provisions for the implementation of Article 11, third paragraph, of the Copyright Act, which stipulates that the authors of works which have either been broadcast or released as audio or audiovisual recordings are entitled to a special compensation for the aforementioned copying by natural persons for private use on tapes, hard disks, optical disks or other materials, whatever their form, capable of being used to make analogue or digital recordings of sound and/or images. Moreover, that equipment principally intended to be used for such recording purposes should be subject to a levy. Article 11, fourth paragraph, of the Act contains more detailed provisions, in three numbered items, on the imposition of the levy on equipment and recording media. Article 11, fifth paragraph, of the Act stipulates that the Minister lay down more detailed rules on the imposition of the levy pursuant to the third and fourth paragraphs, including on the exact materials and devices which are subject to the levy. 2. EEA rules According to Article 5(2)(b) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (hereinafter ‘the Directive’), the Member States may provide for exceptions to or limitations on the reproduction right provided for in Article 2 of the Directive in respect of reproductions on any medium made by a natural person for private use and for ends that are neither directly nor indirectly commercial, on condition that the rightholders receive fair compensation which takes account of the application or non- application of technological measures referred to in Article 6 of the Directive to the work or subject-matter concerned. Recital 35 of the preamble to the Directive recalls the principle that when exceptions or limitations are codified in law, rightholders should receive fair and adequate compensation for the use made of their protected works or other subject-matter. When deciding on the form, arrangement and level of the compensation, account should be taken of the particular circumstances of each case, including the harm potentially sustained by the rightholders as a result of the act in question. An assessment of this will not necessarily lead to compensation being awarded to rightholders. It may be considered sufficient for the rightholders to receive payment in some other form, for instance as part of a licence fee. Furthermore, technological protection measures implemented in accordance with Article 6 of the Directive have the potential to completely prevent private copying, thus extinguishing the rightholder’s right to compensation. In other cases, such as in the case of private photocopying, the harm sustained by the rightholder is too insignificant for any obligation for payment to arise. Notwithstanding the aforementioned considerations regarding the right of rightholders to compensation, recital 36 of the preamble to the Directive states that Member States may provide for fair compensation for rightholders when applying the optional provisions on exceptions or limitations which do not require such compensation. 4 Recital 37 states that existing national schemes on reprography do not create major barriers to the internal market. Member States should thus be permitted, in respect of reprography, to provide for an exception to or limitation on authors’ exclusive reproduction right. Recital 52 of the preamble states that when implementing an exception to or limitation on private copying in accordance with Article 5(2)(b), Member States should likewise promote the use of voluntary measures to accommodate achieving the objectives of such exception or limitation. If, within a reasonable period of time, no such voluntary measures to make reproduction for private use possible have been implemented, Member States may take measures to enable beneficiaries of the exception or limitation concerned to avail themselves of it. The recital further states that voluntary measures by rightholders, including agreements concluded with other interested parties, as well as measures taken by Member States, do not prevent rightholders from applying technological measures which are consistent with exceptions or limitations laid down in national law in accordance with Article 5(2)(b) of the Directive, taking account of the condition of fair compensation under that provision and the possible differentiation between various conditions of use in accordance with Article 5(5) of the Directive, such as controlling the number of reproductions.
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