Tax & Accounting Blog

Hearing on Dutch Private Copy Levy Postponed

Blog, Indirect Tax, ONESOURCE, Tax Information Reporting July 1, 2014

The hearing on copyright in the context of the Dutch private copy levy (also known as media tax) that was originally scheduled for June 19, 2014 in the Tweede Kamer der Staten-Generaal, the House of Representatives of the Dutch parliament, has been rescheduled for September 24th, 2014.

The hearing was scheduled as a result of ACI Adam B.V. e.a. vs. Stichting de Thuiskopie and Stichting Onderhandelingen Thuiskopie vergoeding.

At issue is the Dutch private copy levy, which provides an exception to the exclusive reproduction right held by copyright and related rights holders under the Copyright Directive. EU Member States that decide to provide such an exception must see that fair compensation is made to rights-holders. In the Netherlands and several other EU Member States this occurs via a levy on specified products.

ACI Adam case deals with whether the fact that rights-holders are damaged by unlawful copying (pirating) should have been a factor in determining the amount of the levy, as had been done in the Netherlands. In a preliminary ruling, the Court of Justice of the European Union ruled that:

National legislation which does not distinguish between lawful and unlawful private reproductions is not capable of ensuring a proper application of the private copying exception. The fact that no applicable technological measure exists to combat the making of unlawful private copies is not capable of calling that finding into question.

Furthermore, the levy system must ensure that a fair balance is maintained between the rights and interests of authors (as the recipients of the fair compensation) and those of users of protected subject-matter.

A private copying levy system, which does not, as regards the calculation of the fair compensation payable to its recipients, distinguish between the lawful or unlawful nature of the source from which a private reproduction has been made, does not respect that fair balance.

It is now up to the Netherlands to bring the private copy levy system in line with the ECJ’s ruling, hence the hearing now scheduled for September 24th, 2014.

The Netherlands’ private copy levy, as well as other private copy levy’s in the EU,  is currently supported by Thomson Reuters’ Global Indirect Tax Determination.