The reprography fee is a fee imposed on entities providing access to devices that enable the reproduction of works under permitted private use in order to compensate for the use of works. Such devices are mainly photocopiers, scanners or cassettes, i.e. devices that were formerly used to copy or reproduce works. The provisions concerning the fee were introduced more than 20 years ago and can be found in Article 5 (2) of Directive 2001/29/EC of the 22nd of May 2001 and in Article 20 of the Polish Copyright Act of the 4th of February 1994. The main purpose of the regulation was to protect the interests of authors against the growing trade in illegal copies at that time.

In the Polish law, the fee is paid through designated collecting societies and then transferred to authors and publishers. Pursuant to Article 20 of the Polish Copyright Act, the amount of the fee is defined as 3% of the amount due from the sale of the devices indicated in the provision.

As the digital technology develops, there is a discussion concerning the amendment of the reprographic fee by extending its scope also to other electronic devices enabling reproduction of works by any technique.

The CJEU judgment of the 14th of November 2024 (C-230/23) provides the possibility to challenge the obligation to pay the reprographic fee if national provisions concerning the reprographic fee are in conflict with the provisions of Directive 2001/29. There is therefore a potential risk of numerous disputes against collecting societies initiated by manufacturers and importers of the devices indicated in the provision. Polish provisions do not correctly implement Directive 2001/29. According to Directive 2001/29, right holders should receive fair compensation, whereas Article 20(1) of the Act on Copyright and Related Rights provides for a flat-rate fee, while omitting regulations concerning the mechanism for refunding possible overpayment.

The CJEU found that in the event of the absence of a correct transposition of the provision concerning the reprographic fee, an individual may rely on the provisions of the Directive in order to exclude the application of national norms obliging it to pay the aforementioned fee.

The preliminary ruling was issued at the request of a Belgian court in the context of a dispute between Copaco, a distributor of IT equipment, including copiers and scanners, and Reprobel, to which Copaco was obliged to pay a flat-rate reprographic fee in respect of reproduction of works protected by copyright and related rights. The dispute arose when Copaco stopped paying the invoices issued by Reprobel. Copaco indicated that the suspension of the fee payment would continue until Belgian legislation was aligned with the provisions of Directive 2001/29. At the beginning of 2017, an fair compensation fee system was introduced in Belgium. Reprobel subsequently sued Copaco for unpaid invoices issued between November 2015 and January 2017.

However, the referring court maintained that the rules provided for in the Belgian fair-compensation fee system were, at least in part, contrary to Directive 2001/29, as the fair compensation fee system referred to in Article 5(2)(b) of that Directive was not reflected in that system, which, until the 29th of December 2016, provided for the use of flat-rate fee.

Doubts also arose as to whether Article 5(2)(a) and (b) of Directive 2001/29 was directly effective and could be applied to Reprobel, which could be regarded as a state-owned entity by virtue of the task entrusted to it by the government to collect and distribute fair compensation fee.

Summary

The CJEU underlined that individuals may not pay the reprographics fee if it is collected on the basis of national legislation that is in conflict with the Directive.

The CJEU also pointed out that although Reprobel has the legal form of a private law cooperative company, it is nevertheless an entity which is subject to the authority or control of a public authority and, moreover, carries out tasks in the public interest. It therefore concluded that Copaco could rely on Directive 2001/29 against Reprobel.

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