Fair Compensation for Private Copying: Is There a Need to Amend Luxembourg’s Copyright Law?

Abstract

Private copying exceptions are a core feature of many copyright laws around the world. EU Member States may provide for such an exception on the condition that the rightholders receive fair compensation. Although the European Court of Justice (ECJ) interprets the fair compensation requirement as an autonomous concept of EU law, it concedes Member States broad discretion when determining the design of their compensation scheme. Most of them have adopted a private copying exception, regularly in conjunction with a levy system operated by collecting societies. Luxembourg’s Copyright Act enshrines a private copying exception on the condition that the rightholders receive fair compensation. The law refers to a Grand-Ducal regulation to lay down the conditions for determining and collecting it, but no corresponding act has ever been promulgated. This article interprets the existing legal framework in Luxembourg considering the ECJ’s interpretation of Article 5(2)(b) DIR 2001/29/EC and assesses the need to amend Luxembourg’s copyright law. It proposes establishing a fair compensation scheme funded through the general state budget and managed through an existing collective management organisation thereby taking into account the government’s existing financial support of social and cultural establishments that already benefit reproduction rightholders.