The European Court has upheld the right of copyright businesses in the EU to ask for a ‘private copying levy’, but slapped down Spain for applying it indiscriminately. The Court was hearing a case brought by the Spanish music collecting society SGAE against a storage vendor called Padewan.

Spain provides a case study in how to balls up a levy.

Under EU law, member states may provide an exemption for a person making a copy of a work for private non-commercial use, “on condition that the rightsholders receive fair compensation”.

The Sociedad General de Autores y Editores de España (SGAE) asked for and got a levy imposed on blank media and consumer electronics goods, which has swelled its coffers by over €20m – a 72.9 per cent increase. But it had been applied indiscriminately and set too high.

For example, businesses were charged for making CD backups. Naturally this led to an enormous consumer backlash. Punters felt they’d paid for the work twice – and freetardery became rampant.

The case covers royalties from 2002 to 2004. The Court ruled that only devices or media that can be shown to potentially harm authors may qualify.

The Court agreed that “the person who has caused harm to the holder of the exclusive reproduction right is the person who, for his own private use, reproduces a protected work without seeking prior authorisation from the rightholder. Therefore, in principle, it is for that person to make good the harm related to that copying by financing the compensation which will be paid to the rightholder.”

However: “The indiscriminate application of the private copying levy to all types of digital reproduction equipment, devices and media, including in the case expressly mentioned by the national court in which they are acquired by persons other than natural persons for purposes clearly unrelated to private copying, does not comply with Article 5(2)(b) of Directive 2001/29.”

It bounced a further question, whether the Spanish law was consistent, back to the national courts.

Unlike most EU members, the UK has no private copying exemption. Home taping has never been legal here.

In 2008 composers and songwriters asked for consistency with Europe in 2008, stating that consumers should allowed by law “to transfer music they have purchased on to a portable device, while ensuring that a fraction of the value is enjoyed by those who create music and invest in in its creation”.

You can find the ruling (dated 21 October) here.