In the aforementioned case the The Hague Court of Appeal ruled that ‘tethered downloads’, or ‘offline streaming copies’, cannot be considered private copies within the meaning of the law. These are offline copies from streaming services such as Spotify and Netflix. The Court rules that these copies are not made by the consumer but by the streaming service, and therefore are not private copies.
Against the ruling of 22 March 2022 appeal in cassation has been lodged. In the meantime, the ruling must be followed. Therefore, the SONT has decreed a reduction of most of the tariffs. The decree is in force from 1 January 2023 to 31 December 2024. However, the SONT decided on a small increase of the tariff on tablets, as it would have become very low in comparison with other countries. Two more adjustments have been made: a zero-tariff on set top boxes with hard disk and on HDD-recorders because of low sales figures, and an inflation correction. Because parties involved could not come to an agreement, the chair decided.
The SONT will use the years 2023 - 2024 to renegotiate the tariffs based on the ruling on cassation , as well as other relevant insights.
Private copying levies as from 1 January 2023
Refurbishment
In consultation with the industry and also in compliance with a recent ruling of the District Court of The Hague (Stichting de Thuiskopie / SES Computers BV), the SONT included in its decree a further clarification of the definition of a refurbished device. Refurbishment often entails more parties performing a part of the manufacture. The party which imports the device or which makes the device ready for end users is the one obliged to pay the private copying fee.
The new SONT decree on private copying levies has been published in the Staatscourant of 18 November 2022.
In the Netherlands, it is permitted to make copies of works protected by copyright and neighbouring rights for one's personal practice, study or use. For this exception, an equitable remuneration is legally owed to the authors and other rightholders of these works: the private copying levy. The amount of the remuneration is related to the damage suffered by rightholders as a result of private copying.
The Stichting Onderhandelingen Thuiskopievergoeding (SONT) (Foundation for Private Copying Levy Negotiations) is charged, pursuant to Section 16e of the Copyright Act and Section 10(a) of the Neighbouring Rights Act, with determining the amount of the private copying levies as referred to in Section 16c of the Copyright Act.
The SONT is headed by independent chair Marco Pastors, who is assisted by independent advisors. On the board of the SONT, rightholders and those liable to pay are equally represented. Rightholders are represented by Stichting de Thuiskopie. Branch organisations NLdigital, FIAR CE, Techniek Nederland, NLconnect and STOBI sit on the board on behalf of those liable to pay.
The SONT has opted for an arrangement that is sober in view of the tariffs in relation to the prices of devices and to the total administrative burden, while also looking at trends elsewhere in Europe.
The SONT decree will be in force for three years. However, a mid-term review may be necessary if developments so require.