Event report: The private copying exception and the compensation of harm in a dematerialised environment

On the 16th of October the IPKat, between a warm waffle and a creamy chocolate, participated in the Auvibel conference, under the chairmanship of Professor Frank Gotzen,
KU Leuven and with the collaboration of &DE BANDT Attorneys.

The location was  the stunning Palais des Académies in Brussels, located between the historical heart of the city and the modern, also enchanting, glossy and glassy heart of the European Union.

The conference was bilingual, French - Dutch, and you will have to pardon this Kat for not catching all of the Dutch legalese: she tried her very best!

The theme of the discussion set by Auvibel, the Belgian collective rights management company for the private copying of protected works, was “The private copying exception and the compensation of harm in a dematerialised environment: challenges and opportunities”. The lineup of speakers to the event featured law practitioners, University professors, representatives of the private sector and the Belgian Minister of Justice, Koen Geens. The afternoon talks were divided into five main topics, followed by Q&A and some very very tasty finger food.

The first topic was “Technological context, evolution and prospects” introduced by Professor B.

Beeckmans (Solvay Brussels School), Mr. H. Grondel (Productize), Mr. J. Theys (Agilytic) and Mr. Lambotte (Agoria).  As the title suggests, the presenters discussed how technology has had an impact in our everyday life focussing on the aspect of media, content and the use thereof. The speakers started by describing the 6 D’s exponential impacting industries (digitalisation, deception, disruption, dematerialisation, demonetisation, democratisation), followed by a critical insight on how media is consumed today, analysing different attitudes towards the use of the digital content and the subsequent blurring between what is copying and what is not within the dematerialisation of content.

After this socio-economical insight, a juridical framework to the issue followed: “The general framework and the scope of the private copying exception”, explained with precision by Professor M.-C. Janssens (KU Leuven), Mr. F. de Visscher (UCL, Simont Braun) and Professor F. Brison (VUB, Hoyng Rokh Monegier). The speakers gave a legislative overview (European and Belgian) as well as an analysis of existing EU case law, the Belgian Bhaalu case, and a special focus on AG Spuznar’s opinion in VCAST, speculating on its possibles outcomes and impact.

Full panel

A little coffee, speculoos and chit-chat and we were all powered-up for the second half of the conference, which kicked-off with Mr. P. de Bandt (&DE BANDT), Professor V. Cassiers (UCL, Sybarius) and Mr. P. Callens (Eubelius) talking about “The concepts of ‘harm’ and ‘fair compensation’ in the light of the case law of the Court of Justice of the European Union”. With their presentations, they answered the questions “who is liable, how to collect the levy and for whom” (Nokia and Amazon cases) and discussed the type of levy in light of the jurisprudence (Hewlett-Packard and Padawan).

Next on the list were Professor L. Neels (KU Leuven, UA Antwerpen) and Mr. K. Volckaert (riverrun) on “A methodology of the levy of the fair compensation for private copying” discussing how the actual model of calculation based on physical copies is outdated and analysing the possible alternatives for the future, to achieve a balance of compensation of harm with user’s rights, their explanation based on a value chain model.

After a long day of meetings, Minister Koen Geens arrived and talked about the importance of this topic also at legislative level. This served to introduce the last topic of the day, “The organisation of the levy of the fair compensation for private copying”, which was discussed  by Mr. F. Stroobant of Auvibel and Dr. T. Desmet (Profacts). They both analysed the current situation as regards levies and consumption of content with a focus on Auvibel’s figures, which show a decline in revenue. The conclusion was in sense of a needed reform of how levies are calculated.