The new SONT decree is the result of negotiations between representatives of rightholders on the one hand and manufacturers and representatives of distributors of the hardware through which the private copying levy is collected on the other hand. This time the decree was established by a majority decision (albeit with the smallest possible majority). The negotiators are guided by developments in consumer use of devices which allow copying of copyrighted works for private use. To this end, ongoing consumer surveys are carried out by Kantar Public. The surveys take into account new technological and legal developments in the Netherlands and the EU and include new devices and new ways of use as soon as possible.
Private copying levies as from 1 January 2021
Making private copies on smartphones is on the rise. Thanks to its constant proximity, this device is widely used by consumers in everyday life. This is reflected in an increase in the tariff compared with the previous decree. Tariffs for portable audio and video players and external hard drives are also rising. USB sticks with a capacity of 256 GB and more will also be charged at a higher tariff. PCs, laptops and e-readers will see a slight increase in tariffs; for set-top boxes with hard disks, the tariff will remain the same. The consumer survey also shows that tablets and wearables, such as smartwatches and fitness trackers, are used less for making private copies, leading to a decrease in the tariff for these items. Based on sales forecasts, the total revenue would amount to € 44.6 million, or approximately € 2.56 per capita.
More and more often, so-called 'refurbished' devices are being sold. This mainly concerns mobile phones. In general, these are imported from abroad or obtained from large professional users, and no private copying fee has been paid for them on the Dutch market even in their 'previous lives'. In constructive consultation with sector representative Techniek Nederland it has been agreed that when a refurbished device is sold by a professional reseller to or for the benefit of a new end user, a private copying fee is due. Because the operational life of refurbished devices is on average shorter than that of completely new devices (which implies lower numbers of stored private copies), a reduction of 40% on the normal fee for that device applies.
Cloud storage of home copies is mainly done in combination with the PC/laptop, tablet and smartphone, especially for backup and automatic synchronisation. The remuneration for this category of private copies is included via a surcharge in the tariffs for the devices most commonly used for this purpose. Because of the significant increase in this way of use in the years 2018-2019 compared to previous years, the SONT decided to increase the cloud surcharge in the tariffs of these devices from 5% to 10%.
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.