Opinion of the Advocate General — ECLI:EU:C:2015:389
Date: 2015-06-11
Language of the case: French
Subject matter: Intellectual, industrial and commercial property;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Belgium

Summary — Judgment of the Court (Fourth Chamber), 12 November 2015 1. Questions referred for a preliminary ruling — Jurisdiction of the Court — Limits — Jurisdiction of the national court — Establishing and assessing the facts of the dispute — Need for a preliminary ruling and relevance of the questions raised — Assessment by the national court (Art. 267 TFEU) 2. Approximation of laws — Copyright and related rights — Directive 2001/29 — Harmonisation of certain aspects of copyright and related rights in the information society — Reproduction right — Reprography exception — Fair compensation — Differentiated recovery from natural persons making copies for private and non-commercial use and users acting for other purposes (European Parliament and Council Directive 2001/29, Art. 5(2)(a) and (b)) 3. Approximation of laws — Copyright and related rights — Directive 2001/29 — Harmonisation of certain aspects of copyright and related rights in the information society — Reproduction right — Reprography and private copying exceptions — Fair compensation — National legislation authorising the allocation of a part of the fair compensation to publishers, those publishers being under no obligation to ensure that the authors of the works benefit — Not permissible (European Parliament and Council Directive 2001/29, Arts 2 and 5(2)(a) and (b)) 4. Approximation of laws — Copyright and related rights — Directive 2001/29 — Harmonisation of certain aspects of copyright and related rights in the information society — Reproduction right — Reprography and private copying exceptions — Fair compensation — National legislation introducing an undifferentiated system for recovering fair compensation which covers the copying of sheet music and counterfeit reproductions made from unlawful sources — Not permissible (European Parliament and Council Directive 2001/29, Art. 5(2)(a) and (b)) 5. Approximation of laws — Copyright and related rights — Directive 2001/29 — Harmonisation of certain aspects of copyright and related rights in the information society — Reproduction right — Reprography and private copying exceptions — Fair compensation — Financing of compensation by a lump-sum remuneration payable by manufacturers and importers of multifunction printers and determined by reference to the speed of the device — Recovery of an additional proportional remuneration payable by users by reference to the number of copies produced — Not permissible — Conditions (European Parliament and Council Directive 2001/29, Art. 5(2)(a) and (b)) 1. See the text of the decision. (see paras 24, 25) 2. Article 5(2)(a) and Article 5(2)(b) of Directive 2001/29 on the harmonisation of certain aspects of copyright and related rights in the information society must be interpreted as meaning that, with regard to the phrase ‘fair compensation’ contained in those provisions, it is necessary to draw a distinction according to whether the reproduction on paper or a similar medium effected by the use of any kind of photographic technique or by some other process having similar effects is carried out by any user or by a natural person for private use and for ends that are neither directly nor indirectly commercial. In that regard, a situation in which reproductions are made, in the context of the reprography exception laid down in Article 5(2)(a) of Directive 2001/29, by a natural person for private use and for ends that are neither directly nor indirectly commercial is not comparable, as regards fair compensation, to a situation in which reproductions which, while made in that same context of the reprography exception, are made either by a user other than a natural person, or by a natural person but for a use other than private use or for ends that are directly or indirectly commercial, since the harm suffered by the rightholders in each of those situations is not, as a general rule, identical. (see paras 41, 43, operative part 1) 3. Article 5(2)(a) and Article 5(2)(b) of Directive 2001/29 on the harmonisation of certain aspects of copyright and related rights in the information society preclude national legislation which authorises the Member State in question to allocate a part of the fair compensation payable to rightholders to the publishers of works created by authors, those publishers being under no obligation to ensure that the authors benefit, even indirectly, from some of the compensation of which they have been deprived. Since, first, the fair compensation which is payable under the reprography exception laid down in Article 5(2)(a) of Directive 2001/29 and the private copying exception laid down in Article 5(2)(b) thereof is intended to compensate for the harm suffered by rightholders as a result of the reproduction of their works without their authorisation and, second, publishers are not exclusive reproduction rightholders pursuant to Article 2 of Directive 2001/29, publishers do not suffer any harm for the purposes of those two exceptions. They cannot, therefore, receive compensation under those exceptions when such receipt would have the result of depriving reproduction rightholders of all or part of the fair compensation to which they are entitled under those exceptions. (see paras 48, 49, operative part 2) 4. Article 5(2)(a) and Article 5(2)(b) of Directive 2001/29 on the harmonisation of certain aspects of copyright and related rights in the information society preclude, in principle, national legislation which introduces an undifferentiated system for recovering fair compensation which also covers the copying of sheet music, and preclude such legislation which introduces an undifferentiated system for recovering fair compensation which also covers counterfeit reproductions made from unlawful sources. First of all, with regard to sheet music, it follows expressly from the wording of Article 5(2)(a) of Directive 2001/29 that sheet music is excluded from the scope of the reprography exception laid down in that provision. Sheet music cannot, therefore, be taken into consideration when calculating fair compensation in the context of that exception, even in situations where the reproduction of sheet music is carried out by a natural person for private use and for ends that are neither directly nor indirectly commercial. It is necessary to draw the same conclusion, in principle, as regards the private copying exception laid down in Article 5(2)(b) of that directive. Indeed, were the reproduction of sheet music to be authorised in the context of one of those exceptions and prohibited in the context of the other, the legal situation in the Member State concerned would be contradictory and would make it possible for the prohibition on authorising the reproduction of sheet music to be circumvented. Under those conditions, the exclusion of sheet music set out in Article 5(2)(a) of Directive 2001/29 must be understood as being intended not only to limit the scope of the reprography exception but also to introduce a special regime for that category of protected subject-matter, prohibiting, in principle, the reproduction thereof without rightholders’ authorisation. Next, concerning counterfeit reproductions, to accept that copies made in the context of the reproduction exception for private use may be made from an unlawful source would encourage the circulation of counterfeited or pirated works, thus inevitably reducing the volume of sales or of other lawful transactions relating to the protected works, with the result that a normal exploitation of those works would be adversely affected. It would also be likely unreasonably to prejudice copyright holders. (see paras 51-54, 60, 61, 64, operative part 3) 5. Article 5(2)(a) and Article 5(2)(b) of Directive 2001/29 on the harmonisation of certain aspects of copyright and related rights in the information society preclude national legislation which introduces a system that combines, in order to finance the fair compensation payable to rightholders, two forms of remuneration, namely, first, lump-sum remuneration paid prior to the reproduction operation by the manufacturer, importer or intra-Community acquirer of devices enabling protected works to be copied, at the time when such devices are put into circulation on national territory, and, second, proportional remuneration paid after that reproduction operation and determined solely by means of a unit price multiplied by the number of copies produced, which is payable by the natural or legal persons who make those copies, in so far as: – the lump-sum remuneration paid in advance is calculated solely by reference to the speed at which the device concerned is capable of producing copies; – the proportional remuneration recovered after the fact varies according to whether or not the person liable for payment has cooperated in the recovery of that remuneration; – the combined system, taken as a whole, does not include mechanisms, in particular for reimbursement, which allow the complementary application of the criterion of actual harm suffered and the criterion of harm established as a lump sum in respect of different categories of users. (see para. 88, operative part 4)