# C_2012399EN.01001003.xml

| 22.12.2012 | EN | Official Journal of the European Union | C 399/10 |
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22.12.2012

EN

Official Journal of the European Union

C 399/10

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Reference for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands) lodged on 26 September 2012 — ACI Adam BV and Others v Stichting de Thuiskopie and Others

(Case C-435/12)

2012/C 399/18

Language of the case: Dutch

Referring court

Referring court

Hoge Raad der Nederlanden

Parties to the main proceedings

Parties to the main proceedings

Applicants: ACI Adam BV, Alpha International BV, AVC Nederland BV, BAS Computers & Componenten BV, Despec BV, Dexxon Data Media and Storage BV, Fuji Magnetics Nederland, Imation Europe BV, Maxell Benelux BV, Philips Consumer Electronics BV, Sony Benelux BV, Verbatim GmbH

Applicants:

Defendants: Stichting de Thuiskopie, Stichting Onderhandelingen Thuiskopie Vergoeding

Defendants:

Questions referred

Questions referred

| 1. | Should Article 5(2)(b) — whether or not in conjunction with Article 5(5) — of the Copyright Directive (1) be interpreted as meaning that the limitation on copyright referred to therein applies to reproductions which satisfy the requirements set out in that provision, regardless of whether the copies of the works from which the reproductions were taken became available to the natural person concerned lawfully — that is to say: without infringing the copyright of the rightholders — or does that limitation apply only to reproductions taken from works which have become available to the person concerned without infringement of copyright? |
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1.

Should Article 5(2)(b) — whether or not in conjunction with Article 5(5) — of the Copyright Directive (1) be interpreted as meaning that the limitation on copyright referred to therein applies to reproductions which satisfy the requirements set out in that provision, regardless of whether the copies of the works from which the reproductions were taken became available to the natural person concerned lawfully — that is to say: without infringing the copyright of the rightholders — or does that limitation apply only to reproductions taken from works which have become available to the person concerned without infringement of copyright?

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| 2. | (a) | If the answer to question 1 is that expressed at the end of the question, can the application of the ‘three-stage test’ referred to in Article 5(5) of the Copyright Directive form the basis for the expansion of the scope of the exception of Article 5(2), or can its application only lead to the reduction of the scope of the limitation? |
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2.

(a)

If the answer to question 1 is that expressed at the end of the question, can the application of the ‘three-stage test’ referred to in Article 5(5) of the Copyright Directive form the basis for the expansion of the scope of the exception of Article 5(2), or can its application only lead to the reduction of the scope of the limitation?

| (b) | If the answer to question 1 is that expressed at the end of the question, is a rule of national law which provides that in the case of reproductions made by a natural person for private use and without any direct or indirect commercial objective, fair compensation is payable, regardless of whether the manufacture of those reproductions is authorised under Article 5(2) of the Copyright Directive — and without there being any infringement by that rule of the prohibition right of the rightholder and his entitlement to damages — contrary to Article 5 of the Copyright Directive, or to any other rule of European law?
  In the light of the ‘three-stage test’ of Article 5(5) of the Copyright Directive, is it important when answering that question that technical resources to combat the making of unauthorised private copies are not (yet) available? |
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(b)

If the answer to question 1 is that expressed at the end of the question, is a rule of national law which provides that in the case of reproductions made by a natural person for private use and without any direct or indirect commercial objective, fair compensation is payable, regardless of whether the manufacture of those reproductions is authorised under Article 5(2) of the Copyright Directive — and without there being any infringement by that rule of the prohibition right of the rightholder and his entitlement to damages — contrary to Article 5 of the Copyright Directive, or to any other rule of European law?

In the light of the ‘three-stage test’ of Article 5(5) of the Copyright Directive, is it important when answering that question that technical resources to combat the making of unauthorised private copies are not (yet) available?

| 3. | Is the Enforcement Directive (2) applicable to proceedings such as these where — after a Member State, on the basis of Article 5(2)b of the Copyright Directive, has imposed the obligation to pay the fair compensation referred to in that provision on producers and importers of media which are suitable and intended for the reproduction of works, and has determined that that fair compensation should be paid to an organisation designated by that Member State which has been charged with collecting and distributing the fair compensation — those liable to pay the compensation bring a claim for a declaration by the courts in respect of certain contested circumstances which have a bearing on the determination of the fair compensation, against the organisation concerned, which defends the action? |
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3.

Is the Enforcement Directive (2) applicable to proceedings such as these where — after a Member State, on the basis of Article 5(2)b of the Copyright Directive, has imposed the obligation to pay the fair compensation referred to in that provision on producers and importers of media which are suitable and intended for the reproduction of works, and has determined that that fair compensation should be paid to an organisation designated by that Member State which has been charged with collecting and distributing the fair compensation — those liable to pay the compensation bring a claim for a declaration by the courts in respect of certain contested circumstances which have a bearing on the determination of the fair compensation, against the organisation concerned, which defends the action?

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(1)  Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (OJ 2001 L 167, p. 10).

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(2)  Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights (OJ 2004 L 157, p. 45).

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