Brussels, 11/07/2013 (Agence Europe) - Under certain conditions, member states may impose a private copying levy on the first sale of recording media (cassettes, blank CDs or DVDs, MP3 players). In addition, there may also be a rebuttable presumption that recording media sold to individuals will be used for private purposes.
With this judgment on 11 July (Case C-521/11), the Court of Justice of the EU answered questions referred to it by the Supreme Court Austria, regarding the online cultural products sales group, Amazon. The latter considers that Austrian legislation, which imposes a private copying levy on all blank media (the so-called “blank cassette levy”) in order, among other things, to pay copyright holders (“fair compensation”) is incompatible with the directive on the protection of copyright in the information society (2001/29/EC). The Austrian court called on the Court of the EU to interpret the directive on several points: A) “The indiscriminate collection in Austria of the blank cassette levy on the first sale of recording media and the possibility of reimbursement in certain cases.” The Court replies that, in principle, the directive does not allow the private copying levy to be collected in cases where the intended use is clearly not the making of private copies. However, under certain conditions, EU law does not preclude such a system of a general levy with the option of reimbursement in cases where the intended use is not the making of private copies. The Austrian court should verify, in the present case, whether the practical difficulties justify such a system of financing of fair compensation and whether the right to reimbursement is effective and does not make repayment of the levy paid excessively difficult. B) “The possibility of a presumption of private use of recording media sold to individuals.” That presumption, the Court states, may be founded subject to proof of the contrary, on two conditions: - practical difficulties in determining whether the purpose of the use of media is private must warrant the establishment of such a presumption; - and presumption must not result in the imposition of the private copying levy in cases where those media are clearly used for non-private purposes. C) “The payment of half of the income from blank cassettes not directly to those entitled to fair compensation but to social and cultural institutions set up for their benefit.” The Court observes that such payment does not allow the right to fair compensation, or the private copying levy intended to finance it, to be excluded, provided that the social and cultural establishments actually benefit those entitled and the detailed arrangements for the operation of such establishments are not discriminatory, which is for the Supreme Austrian court to verify. D) “No account taken of a private copying levy already paid in another member state.” The Court finds that the obligation to pay a levy such as the blank cassette levy may not be excluded by reason of the fact that a comparable levy has already been paid in another member state. A person who has previously paid that levy in a member state which does not have territorial competence to collect it may request its repayment in accordance with its national law.
The French minister for culture, Aurélie Filippetti, welcomed the ruling, saying it validates the right of member states to allocate part of the proceeds from private copying to actions of cultural or social interest. (FG/transl.jl)