- The Netherlands, France and Belgium, explicitly regulated the obligation to pay copyright levy for refurbished devices, as this is considered manufacturing, albeit with reduced tariffs.
- If you first place storage media devices on the market of an(other) European Member state from abroad, you will be considered an importer.
- Alternatively, potentially you may be held liable as a distributor as the transfer of the payment obligation to a downstream trading level is possible.
Why do I have to pay the copyright fee if I am not the manufacturer (e.g. Apple, Samsung, etc)?
đź’ˇ While the levy is in fact economically borne by the consumer, legally it is due by the Manufacturers, Importers, Intra-EU purchaser (Belgium) and Distributors (suppliers).
Please mind, the definitions below shall function as an overview, variations in each copyright law persist.
Mainly the manufacturers or importers
…of storage media devices are obliged to pay the copyright levy, however, down-stream suppliers/distributors (i.e. those who purchase devices and resell them commercially) can be held jointly and severally liable under copyright laws!
This means, the collecting societies can demand payment from each of these groups and a transfer of the payment obligation to a downstream trading level is legally possible!
- Basically the entity, that produces a new device.
- Most countries do not consider refurbishment as an act of manufacturing.
- Mind however, the Netherlands, Belgium and France do (!) consider refurbishment as manufacturing. Thus, in those countries you will be considered a manufacturer.
Example Dutch Manufacturing Definition: “to manufacture, reassemble or arrange for the manufacture of an item within the meaning of Section 16(c) of the Dutch Copyright Act (Auteurswet) in such manner that this can be considered to be a complete product that is new to the market. A used device is the basis for "refurbished". This device is renovated, adapted, renewed, checked and / or rebuilt in such a way that it can be sold to a new consumer.”
In the case of refurbished products
…naturally there has been at least one entity before you in the supply chain. Thus, the further back in the supply chain you are, the more likely it is that the copyright levy for the particular device has already been paid and is therefore no longer due. Mind however, that you will have to be able to prove, that the levy was already due and paid in the respective country.
In any case however, if you import
…a storage media device to another country where the copyright was not due and/or paid already, the consensus throughout Europe is that you are the main/sole debtor of the levy in the import-country.
This is the party who first places storage media devices on the market of an European Member state from abroad. In most cases, refurbed suppliers will be considered importers.
Example: You are based in Germany and sell a storage media device to an end-consumer in Austria. You import a device subject to copyright levy to Austria and therefor liable for reporting the device and paying the copyright levy in Austria.
But: If you are based in Germany and sell a storage media device in Germany, then the copyright levy was due already by either the manufacturer or the importer. In this case you are considered a downstream supplier/distributor. Mind however, down-stream suppliers can be held jointly and severally liable under copyright laws and a transfer of the payment obligation to a downstream trading level is legally possible.
Distributors/(downstream-)supplier
I you purchase devices and resell them commercially and are neither considered a manufacturer (refurbishment is considered manufacturing in the Netherlands, Belgium and France!) nor an importer (i.e. first placing storage media devices on the market of an(other) European Member state from abroad).
The reporting and paying obligations are primarily due by the manufacturer or importer. Mind however, it is still possible, that you are hold liable under copyright laws and a transfer of the payment obligation to a downstream trading level is legally possible.
Intra-EU purchaser (Belgium)
I you provide storage media devices on Belgian territory and come from a country that is a member of the European Union. Two Categories:
- intra-EU purchasers listed as wholesalers. Their main business activity is to provide to other distributors.
- intra-EU purchasers listed as retailers. Their main business activity is to provide to end-users.
Basically the Importer, however in Belgium the Importer is not a member of the European Union. See also “Who is liable to pay remuneration” of the Belgian collecting society.
In Summary
The manufacturer is obligated to pay the copyright levy.
Mind that in some countries, e.g. the Netherlands, France and Belgium refurbishment is considered an act of manufacturing and you are considered a manufacturer with lower tariffs.
If you are not considered a manufacturer, you may still be held liable under copyright laws, if the levy has not been paid by the manufacturer, the importer or upstream supplier.
In any case however, if you first import a device to an(other) EU country, you must pay the levy as the importer.
Can I shift the duty to pay to the manufacturer?
đź’ˇ You are considered a manufacturer of refurbished devices, albeit with lower tariffs, in the Netherlands, France and Belgium!
As an Importer
Manufacturers with their registered office abroad are obliged to pay the copyright levy in their base country, otherwise only if they are (additionally) considered as the importer.
Thus, if the manufacturer is from abroad and/or has not imported the device to the country in question, you most likely have to pay the copyright levy as the Importer.
As a downstream supplier
If you purchased the device from a manufacturer or upstream supplier with their registered office in the same country and also sell it to a consumer of the same country, then it might be possible to shift the obligation. Please consult a legal advisor for this case.