Clifford Chance

Spain has updated the fees payable for the private copying of protected works. We look at what's changing.

Private copying levy 

In Spain fair compensation for private copying (private copying levy) is provided for in article 25 of the Spanish Copyright Act (Royal Legislative Decree 1/1996, of 12 April 1996 – "SCA"). The Private copying levies the standalone payment mechanism applicable to certain equipment, devices and material media capable of reproducing copyright protected works, which operates only when such reproduction is made for private use (any professional or corporate usage is excluded), requiring that such private copy be made from a legal source and by a natural person not performing any collective or lucrative activity nor conducting the distribution of such copy for a price.

In essence, the levy amount is intended to compensate right holders, based on the premise that some acts of private copying cannot be licensed for practical purposes, by  attaching the levy to certain products (equipment or blank media) that can serve to reproduce audio, audio-visual and textual material such as music, films or books.

According to applicable regulations (mainly article 25 of the SCA and Spanish Royal Decrees 12/2017, of 3 July, and 1398/2018, of 23 November), the beneficiaries of this levy are the authors and, in the case of certain reproduction modes, the editors of the affected works, the producers of phonograms and videograms, as well as the performers whose performances have been included in such phonograms and videograms. The payees of the levy are: 

• those manufacturers in Spain who act as commercial distributors
• those equipment, device and material media acquirers established outside Spain but who carry out commercial distribution or utilization activities within Spanish territory.

Furthermore, distributors, wholesalers and resellers are jointly and severally liable, as they are deemed subsequent purchasers of these products, unless they can prove that they have duly paid the compensation to the debtors who provided them with said goods.

Royal Decree 12/2017 contained a transitional provision which established the provisional amounts corresponding to fair compensation for private copying for each piece of equipment, device and material medium to be applied transitorily (which will be still applicable until 1 July 2023), mandating that, within a year, the final relevant amounts of such fair compensation would be approved by another Royal Decree.

The new rates

The Spanish Government accomplished this mandate on 28 March 2023 when it enacted Royal Decree 209/2023, which establishes

• the final list of equipment, devices and material media subject to payment of the levy for private copying
• the amount -fair compensation- applicable to each
• the distribution criteria under the different reproduction modes. 

These changes enter into force on 1 July 2023.

Annex I of Royal Decree 209/2023 contains a full range of equipment, devices and material media subject to payment of the levy that reflects the evolution of technologies. It comprises equipment and devices, such as printers, scanners, smartphones, tablets, computers, but also material storage media such as memory cards, HDD and SSD, but also USBs, DVD-R and CD-R, which are classified depending on their copy capability and storage capacity. Smartwatches are also included for the first time. 

The following list contains a comparison between the old and new levy fees.

In general terms, there has been a notable increase in the amounts applicable to smartphones and tablets, increasing from EUR 1.10 to EUR 3.25 and EUR 3.15 to EUR 3.75, respectively. We also find, for the first time, an applicable compensation for smartwatches, which will bear a cost of EUR 2.50.

However, there has been a substantial decrease in the applicable compensation for internal memory drives (HDD and SSD), falling dramatically from EUR 5.45 to EUR 0.90–3.00 depending on their respective storage capacity.

It is important to note, however, that, although the above-mentioned amounts are intended to be permanent, the list can be reviewed at any time by a ministerial order if necessary, as a result of technological developments and market conditions and, in any event, at least once every three years.

Furthermore, the Royal Decree establishes the distribution criteria of the levy with respect to each piece of equipment, device and material medium and between the different modes of reproduction, which will be as follows:

We can expect, as of 1 July, that the new levy fee amounts will inevitably impact the cost of the equipment, devices and material media affected (specially smartphones, tablets and smartwatches), which will presumably result in an increase in the temperature of retail prices in the Spanish market.