Brussels, 14/04/2014 (Agence Europe) - The level of the charge payable for making private copies of protected works may not take account of the damage which could be suffered by copyright holders due to copies made from illegal sources, irrespective of the fact that there is no technical measure applicable to combat illegal private copying.
This was the verdict returned by the Court of Justice of the EU on 10 April in response to the Supreme Court of the Netherlands (case C-435/12), which asked the Court about the compatibility of the charge payable in the Netherlands on the sale of blank data media (CD, CD-R, DVD, etc.) with the directive on copyright in the information society (2001/29/EC).
This legislative act admits the possibility of making copies of protected works for strictly private use and provides the possibility of such a charge, in order to compensate copyright holders for the use of their work within a legal framework.
A producer/importer of digital data media challenged the fact that in the Netherlands, the level of this fee also includes a percentage aiming to compensate rights holders for the damage they may suffer due to private copies being made from illegal sources.
In its ruling, the Court upholds the position of this company. It takes the view that for the legislation to provide for a percentage to be levied in this way is tantamount to the state in question admitting (Ed: and thereby effectively legitimising) the possibility for private copies to be made from illegal sources. However, this possibility would infringe the single market and the protection of copyright. It would effectively encourage the circulation of counterfeit or pirated works and necessarily reduce legal sales transactions on the protected works, bringing about damage to the copyright holders.
The Court takes the view that national legislation which does not differentiate between the legal or illegal nature of the source from which the private copies made cannot ensure a correct application of the exemption for private copying provided for by the directive (exemption to the ban on copying the protected work). And this conclusion is not called into question by the fact that there is no technical measure applicable to address illegal private copying.
The Court also concludes that this lack of differentiation in the fee does not respect the fair balance between the interests of the author of the protected work and those of the users. Indeed, the proportion of the fee to compensate for the damage suffered by the creators due to copies being made from illegal sources is passed onto the price paid by all users of works or protected objects at the time when equipment, devices and media which make it possible to create private copies are made available to them, which has the effect of increasing the cost of private copying for all of these users. (FG)