[European Copyright Society] On June 11, 2015, the Advocate-General Pedro Cruz Villalón delivered his Opinion in the HP Belgium v. Reprobel case now pending before the Court of Justice of the EU (CJEU, case C-572/13). This Opinion and the underlying case raise one important issue: 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 Infosoc Directive directly to publishers, although they are not listed among the initial holders of the reproduction right under Article 2 of the Infosoc Directive?
As a group of academics concerned about the copyright reforms envisaged in the European Union as well as by the interpretation and development of the law by the CJEU, the European Copyright Society (ECS) takes this opportunity to share its view on this matter of principle.
Copyright law is linked to the freedom of the authors to create and should remunerate the creative authors in first instance. Therefore copyright law should not grant rights ab initio to persons other than the individual creators. This principle (the “author principle”) applies to the exclusive rights within the copyright bundle. It also applies to any right to remuneration provided by law to compensate for the exempted uses of copyright-protected works. We believe copyright is not the correct instrument by which to confer rights on legal entities to protect their investments. There are many instances where publishers or producers deserve to get an adequate protection, but their protection should derive either from the contracts concluded with the individual creators or by way of a related right granted by law. The ECS believes the Court of Justice of the EU should clearly reaffirm the important principle of initial authorship for creators.
With respect to the question of the allocation of the right to fair remuneration raised in the HP Belgium v. Reprobel case, the response that the Advocate-General proposes largely acknowledges the author principle and, to that extent, the Opinion is welcome. However, by leaving too much leeway to the Member States, some aspects of the Opinion (§132 to 143) might create uncertainty. In particular, the ECS does not think Member States should be free to grant publishers a remuneration right as a related right. This would seriously reduce the harmonizing effect of the 2001/29 Infosoc Directive.
In the ECS’s opinion, the 2001/29 Infosoc Directive prohibits a system which automatically allocates a part of the fair remuneration for the reprographic or private copies of copyright works to persons other than the authors.
