Summary

Subsection 26 (1) of the Copyright Act permits the reproduction of audiovisual works or sound recordings of such works for private use; the holder of the rights (the author, the producer of phonograms and producer of the first fixation of a film), however, has the right to obtain equitable remuneration for such use. It is an indemnity known as the ‘private copying fee’ (also known as ‘blank cassette remuneration’) and is intended to compensate rightholders for the harm they suffer as a result of such reproduction of works (in particular, such harm being the lost profit of the rightholder).

Today’s general framework for the regulation of the private copying fee derives from European Union law, more specifically the InfoSoc Directive. Under Article 5 (2) b) of the Directive, Member States may provide for exceptions to the reproduction right [...] ‘in respect of reproductions on any medium made by a natural person for private use and for ends that are neither directly nor indirectly commercial, on condition that the rightholders receive fair compensation’. The Court of Justice has emphasised the considerable discretion of the Member States in determining the elements of a system of fair compensation, including the determination of the category of persons liable for and entitled to compensation, as well as the form and amount of the compensation and the arrangements for collecting and paying the compensation. Due to the active exercise of this discretion, there are considerable differences between the private copying fee systems in place in the Member States of the European Union.

The article analyses the system of distribution of private copying fees in different countries and compares it with the Estonian system, with the aim of serving as an inspiration to finding the best solution in this dynamic field.