Opinion of the Advocate General — ECLI:EU:C:2016:24
Date: 2016-01-19
Language of the case: Spanish
Subject matter: Intellectual, industrial and commercial property;Approximation of laws
Procedure: Reference for a preliminary ruling;Reference for a preliminary ruling - decision unnecessary
Origin: Spain

Summary — Judgment of the Court (Fourth Chamber), 9 June 2016 1. 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 — Private copying exception — Fair compensation — Discretion of the Member States — Aim — Protection for copyright holders (European Parliament and Council Directive 2001/29, Recitals 35 and 38 and Art. 5(2)(b)) 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 — Private copying exception — Fair compensation — National legislation placing the burden of financing the compensation on the General State Budget with no possibility of an exception for legal persons — Not permissible (European Parliament and Council Directive 2001/29, Recitals 4 and 9 and Art. 5(2)(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 — Private copying exception — Fair Compensation — Autonomous concept of EU law (European Parliament and Council Directive 2001/29, Art. 5(2)(b)) 1. See the text of the decision. (see paras 19-28) 2. 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 precluding a scheme for fair compensation for private copying which is financed from the General State Budget in such a way that it is not possible to ensure that the cost of that compensation is borne by the users of private copies. On the one hand, it follows from the clear terms of that provision that the private copying exception is intended exclusively for natural persons making, or having the capacity to make, reproductions of protected works or subject matter for private use and for purposes neither directly nor indirectly commercial. It follows that, unlike natural persons who fall within the private copying exception under the conditions specified by Directive 2001/29, legal persons are in any case excluded from benefiting from that exception and thus are not entitled to make private copies without receiving prior authorisation from the rightholders of the protected works or subject matter concerned. On the other hand, although, as EU law currently stands, Member States are indeed free to establish a scheme under which legal persons are, under certain conditions, liable to pay the levy intended to finance the fair compensation referred to in Article 5(2)(b) of Directive 2001/29, such legal persons cannot, in any event, be the persons ultimately actually liable for payment of that burden, regardless of whether that Member State has established a fair compensation scheme financed by a levy or by its General State Budget. In those circumstances, a scheme for financing the fair compensation from the General State Budget of the Member State which, firstly, does not have a definite allocation of revenue to particular expenditure so that the budgetary item intended for the payment of the fair compensation must be regarded as being financed from all the budget resources of the General State Budget and therefore also from all taxpayers, including legal persons, and, secondly, does not have a particular measure allowing legal persons to request to be exempted from contributing to the financing of that compensation or, at least, to seek reimbursement, is not such as to guarantee that the cost of that compensation is ultimately borne solely by the users of private copies (see 29, 30, 36, 37, 39-42, operative part) 3. See the text of the decision. (see para. 38)