Brussels, 10/01/2014 (Agence Europe) - Fees for private copies of a work under copyright that has been illegally published would indirectly encourage mass publication of illegal copies, said Court of Justice judge Pedro Cruz Villalon in conclusions published on Thursday 9 January. He says that the exception to EU Directive 2001/29/EC on aspects of copyright and related laws in the information society that, under certain conditions, allows copies to be made for private use of works protected by copyright only applies to reproductions of works or objects from legal sources. He invites the European Court of Justice to rule that, when it comes to private copies, member states must only allow fees to be charged on licit sources.
The judge was responding to a request for interpretation of the EU directive by a Dutch court wanting to know whether the private copy exception only applies to copies from legal sources or to all copies irrespective of the source; whether a national regulation levying a fee to provide “fair compensation” for the copyright holder for private copies of his work (as provided for by the directive) that applies to copies made from both legal and illegal sources complies with EU law.
In his conclusions, Cruz Villalon starts by pointing out that the directive lays down three conditions for the private copy exception - it only applies in certain special cases; it must not negatively impact on the normal use of the work; and it must not cause unfair damage to the copyright-holder. The second condition in particular precludes the directive being interpreted in such a fashion as to allow a member state to levy “fair compensation” when a copy comes from an illegal source. He rejects the Dutch state's argument (backed by Austria) that allowing the levying of copyright fees for private copies of illegally made sources is the only way to repair some of the damages suffered by copyright holders. He says that, on the contrary, by only penalising uploading, rather than downloading, protected works, the Netherlands is indirectly encouraging the widespread illegal publishing on the web of products made from copyright-protected work, which would damage the legal use of the works. Moreover, he doubts that the levying of a fee would fairly compensate for copyright holders' loss of earnings when their works are illegally published online.
On the question of the conformity with EU law of a Dutch provision imposing collection of this fee, Cruz Villalòn says that the limits and exceptions to the exclusive right to make copies provided for in the directive would not be applied coherently if member states were free to decide for themselves what constitutes fair compensation. Allowing this possibility would breach two of the above-mentioned conditions because it would extend the scope of application of the private copy exception beyond the special case defined in the directive and it would indirectly legitimise the flouting of the normal use of copyright-protected works.
He therefore concludes that member states must only charge “fair compensation” fees for legal copies of works under copyright. (FG/transl.fl)