Brussels, 20/06/2011 (Agence Europe) - Member states which have brought in an “exception for private copying” are obliged to ensure effective recovery of the “fair compensation” intended to compensate the authors, artists and producers, even if the commercial seller of the reproduction media is established in another member state.
This is the gist of the ruling returned by the Court of Justice of the EU in Case C-462/09, in response to questions brought by the Dutch Supreme Court on the interpretation of Directive 2001/29/EC (copyright and related rights in the information society). This directive usually grants exclusive reproduction rights to the owners of the copyright, but provides for an exception which allows the member states to allow private copying, as long as the owners of the copyright receive “fair compensation”. The Dutch Court was asked to settle a dispute between the Dutch tax administration responsible for collecting private copying fees (which, in the Netherlands, is paid by the manufacturer or importer of the reproduction media) and a German company which sells blank media to Dutch consumers via Dutch websites. The questions asked by the Dutch Court were as follows: - are there criteria in the directive to determine who, under the national legislation, should be deemed responsible for paying the “fair compensation”? - In the event of a remote contract and if the purchaser of the blank media is established in a different state from the vendor, “does the directive call for a fairly broad interpretation of the national law to allow the 'fair compensation' to be paid by a seller in at least one of the countries concerned by the distance contract?”
On the first question, the Court notes that the directive does not contain any specific criteria making it possible to determine who should be responsible for paying the fair compensation. However, it points out that this compensation should be seen as being in return for the harm caused to the holder of an exclusive reproduction right. If the person who caused this harm is the one who makes a copy of a protected work for his or her own private use without the authorisation of the said owner, this person is, in theory, the one who should make reparation for this damage by paying the compensation due to the owner. Given the practical problems in identifying these private users and forcing them to compensate the owners of the rights, however, the member states have the option to bring in a “private copying levy” to be paid not by the private persons, but by “those who have the digital reproduction equipment, devices and media and to make that equipment available to private users or who provide copying services for them”.
As for determining the person who is to be regarded as responsible for paying the fair compensation in relation to a distance selling arrangement, the Court points out that the European Union legislature expressed its desire to guarantee a high level of protection for copyright and related rights, since they are crucial to intellectual creation. The introduction of the private copying exception may therefore not unreasonably prejudice the legitimate interests of the copyright holder. On that basis, in order to guarantee that protection, member states which have brought an exception for private copying into national law must ensure the effective recovery of the fair compensation intended to compensate the authors harmed by the prejudice sustained, in particular if that harm arose on the territory of that member state. In this case, although it is practically impossible for the Dutch state to recover this compensation from the end users, it is nonetheless obliged to ensure effective recovery of the compensation. The fact, the Court adds, that the commercial seller of reproduction equipment, devices and media is established in a member state other than the one in which the purchasers reside has “no bearing on that obligation”. In the event that it is impossible to recover the fair compensation from the purchasers, the national legislation should “interpret the national law to allow the compensation to be recovered from the person acting as seller”. (F.G./transl.fl)