Private Copying and Levy Schemes: Resolving the Paradox of Civilian and Common Law Approaches

Abstract

The issue of private copying and its implications for copyright owners is not new, and suggested resolutions of the conflicting interests at stake are varied. One such resolution is the implementation of statutory licence and levy schemes. This short paper examines a paradox about these schemes. Statutory licence and levy schemes for private copying have been readily accepted in continental European countries for many decades. By contrast, such schemes have only recently begun to emerge in common law countries. This situation is paradoxical - the statutory licence and levy scheme is common in those jurisdictions which place significant emphasis on authors' moral rights, and yet is rare in those countries that give primacy to the utilitarian rationale for copyright. Why is this so? This paper makes some observations on this topic, which may explain the paradox. It begins by analyzing the differing starting points for dealing with private copying in civilian and common law systems, using the German, United Kingdom and Australian experiences as paradigmatic. This analysis sheds light on the way in which the nature of the problem of private copying is perceived in those two systems. This paper then observes the legislative responses to this problem that have occurred in the two systems, and in particular in Germany, Canada and the United States. A view is then offered about what conclusions might tentatively be drawn from these analyses and observations in respect of the future resolution of the problem of private copying.