# C_2012025EN.01002701.xml

| 28.1.2012 | EN | Official Journal of the European Union | C 25/27 |
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28.1.2012

EN

Official Journal of the European Union

C 25/27

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Reference for a preliminary ruling from the Oberster Gerichtshof (Supreme Court) (Austria) lodged on 12 October 2011 — Amazon.com International Sales Inc. and Others v Austro-Mechana Gesellschaft zur Wahrnehmung mechanisch-musikalischer Urheberrechte Gesellschaft m.b.H.

(Case C-521/11)

(2012/C 25/46)

Language of the case: German

Referring court

Oberster Gerichtshof (Supreme Court)

Parties to the main proceedings

Applicants: Amazon.com International Sales Inc., Amazon EU S.à.r.l., Amazon.de GmbH, Amazon.com GmbH in liquidation, Amazon Logistik GmbH

Defendant: Austro-Mechana Gesellschaft zur Wahrnehmung mechanisch-musikalischer Urheberrechte Gesellschaft m.b.H.

Questions referred

| 1. | Can a legislative scheme be regarded as establishing ‘fair compensation’ for the purposes of Article 5(2)(b) of Directive 2001/29/EC, where






  (a) | the persons entitled under Article 2 of Directive 2001/29/EC have a right to equitable remuneration, exercisable only through a collecting society, against persons who, acting on a commercial basis and for remuneration, are first to place on the domestic market recording media capable of reproducing the works of the rightholders, |
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1.

Can a legislative scheme be regarded as establishing ‘fair compensation’ for the purposes of Article 5(2)(b) of Directive 2001/29/EC, where

(a)

the persons entitled under Article 2 of Directive 2001/29/EC have a right to equitable remuneration, exercisable only through a collecting society, against persons who, acting on a commercial basis and for remuneration, are first to place on the domestic market recording media capable of reproducing the works of the rightholders,

| (b) | this right applies irrespective of whether the media are marketed to intermediaries, to natural or legal persons for use other than for private purposes or to natural persons for use for private purposes, and |
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(b)

this right applies irrespective of whether the media are marketed to intermediaries, to natural or legal persons for use other than for private purposes or to natural persons for use for private purposes, and

| (c) | the person who uses the media for reproduction with the authorisation of the rightholder or who prior to its sale to the final consumer re-exports the media has an enforceable right against the collecting society to obtain reimbursement of the remuneration? |
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(c)

the person who uses the media for reproduction with the authorisation of the rightholder or who prior to its sale to the final consumer re-exports the media has an enforceable right against the collecting society to obtain reimbursement of the remuneration?

| 2. | If Question 1 is answered in the negative:






  2.1. | Does a scheme establish ‘fair compensation’ for the purposes of Article 5(2)(b) of Directive 2001/29/EC if the right specified in Question 1(a) applies only where recording media are marketed to natural persons who use the recording media to make reproductions for private purposes? |
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2.

If Question 1 is answered in the negative:

2.1.

Does a scheme establish ‘fair compensation’ for the purposes of Article 5(2)(b) of Directive 2001/29/EC if the right specified in Question 1(a) applies only where recording media are marketed to natural persons who use the recording media to make reproductions for private purposes?

| 2.2. | If Question 2.1 is answered in the affirmative: Where recording media are marketed to natural persons must it be assumed until the contrary is proven that they will use such media with a view to making reproductions for private purposes? |
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2.2.

If Question 2.1 is answered in the affirmative: Where recording media are marketed to natural persons must it be assumed until the contrary is proven that they will use such media with a view to making reproductions for private purposes?

| 3. | If Question 1 or 2.1 is answered in the affirmative:
  Does it follow from Article 5 of Directive 2001/29/EC or other provisions of EU law that the right to be exercised by a collecting society to payment of fair compensation does not apply if, in relation to half of the funds received, the collecting society is required by law not to pay these to the persons entitled to compensation but to distribute them to social and cultural institutions? |
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3.

If Question 1 or 2.1 is answered in the affirmative:

Does it follow from Article 5 of Directive 2001/29/EC or other provisions of EU law that the right to be exercised by a collecting society to payment of fair compensation does not apply if, in relation to half of the funds received, the collecting society is required by law not to pay these to the persons entitled to compensation but to distribute them to social and cultural institutions?

| 4. | If Question 1 or 2.1 is answered in the affirmative:
  Does Article 5(2)(b) of Directive 2001/29/EC or other provision of EU law preclude the right to be exercised by a collecting society to payment of fair compensation if in another Member State — possibly on a basis not in conformity with EU law — equitable remuneration for putting the media on the market has already been paid? |
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4.

If Question 1 or 2.1 is answered in the affirmative:

Does Article 5(2)(b) of Directive 2001/29/EC or other provision of EU law preclude the right to be exercised by a collecting society to payment of fair compensation if in another Member State — possibly on a basis not in conformity with EU law — equitable remuneration for putting the media on the market has already been paid?

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