Opinion of the Advocate General — ECLI:EU:C:2023:583
Date: 2023-07-13
Language of the case: German
Subject matter: Right of establishment;Intellectual, industrial and commercial property;Approximation of laws;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary of the observations submitted 14. The applicant, the defendant and the Commission submit that broadcasting organisations may not be excluded from the right to fair compensation pursuant to Article 5(2)(b) of Directive 2001/29 because private copying causes them more than minimal harm. The applicant and the defendant observe that private copying of broadcasts using fixed devices and online services is widespread and generates considerable harm for broadcasting organisations. Consultation services for media libraries that broadcasting organisations or their commercial licensees offer are less attractive since users can use their private copies without payment. Broadcasting organisations also forgo advertising revenue since viewers who record broadcasts often do not watch them live. The applicant and the defendant indicated at the hearing that German law excludes no other category of rightholder from the right to receive fair compensation. Nor are rightholders who are paid compensation required to demonstrate the existence of harm in monetary terms or to quantify that harm. The defendant adds that, in its view, private copying per se harms broadcasting organisations. 15. The applicant considers that the reproduction right of producers, pursuant to Article 2(d) of Directive 2001/29, and that of broadcasting organisations, pursuant to Article 2(e) thereof, are distinct. In many instances broadcasting organisations, in particular radio broadcasters, do not produce films. The fact that in rare instances broadcasting organisations also produce films does not warrant the exclusion of a right to compensation for the private copying of broadcasts. The exclusion of broadcasting organisations from the private media levy thus constitutes unjustified discrimination. It also infringes the freedom of expression and information that Article 11 of the Charter recognises and the right to property that Article 17 of the Charter protects. 16. The German and Austrian Governments contend that a category of rightholder may be excluded from the right to compensation for private copying if, due to the inherent characteristics of the members of that category or the manner in which those rights are exploited, rightholders suffer minimal harm. (9) They emphasise that Article 2(e) of Directive 2001/29 protects the ‘technical and organisational performance, embodied in the broadcast’ and that the content of broadcasts is not the subject matter of the broadcasting organisations’ right pursuant to that provision. The reproduction of that content must, therefore, be distinguished from the reproduction of the broadcast or the signal by which it is transmitted. (10) According to those governments, the core activity or traditional commercial model of broadcasting organisations is to make available to the public fixations of their broadcasts. They submit that broadcasting organisations do not suffer direct economic loss from the copying of broadcasts, as such copying does not limit the reception of broadcasts and thus their advertising impact. They also consider that there is no credible evidence of direct harm to the media library services that broadcasting organisations provide. The Austrian Government claimed at the hearing that, with the advent of streaming services, the level of copying of broadcasts has fallen. 17. The Italian Government observes that the exclusion of broadcasting organisations from the right to fair compensation where they provide no creative input in the development of an original work is not discriminatory and may be justified by reference to recitals 9 and 35, and Articles 2 and 3, of Directive 2001/29. That government nevertheless considers that compensation is payable where broadcasting organisations, notwithstanding the absence of any creative input, play a decisive role in stimulating the production of an audiovisual work, particularly by financing its production. By contrast, where broadcasting organisations acquire reproduction rights by negotiation, fair compensation is not due as they do not provide a decisive contribution to the creation of a work. B. Article 2(e) of Directive 2001/29 – Exclusive right of reproduction 18. Article 2 of Directive 2001/29 requires Member States to grant authors and the holders of certain identified related rights the exclusive right to authorise or to prohibit reproduction of their protected works or other subject matter. (11) As is evident from its title, Directive 2001/29 harmonises certain aspects of copyright stricto sensu and related rights in order, inter alia, to protect and to stimulate the development and marketing of new products and services in the information society. (12) 19. In accordance with Article 2(e) of Directive 2001/29, Member States must provide for the exclusive right of broadcasting organisations to authorise or prohibit the reproduction of fixations of their broadcasts. The exclusive reproduction right under Article 2(e) of Directive 2001/29 protects ‘fixations’, not the content, of broadcasts. In that regard, the Court held in the judgment in Football Association Premier League and Others (13) that authors can rely on their copyright in works exploited within the framework of broadcasts. (14) The broadcasting organisations’ right in respect of reproductions of fixations of their broadcasts pursuant to Article 2(e) of Directive 2001/29 must also be distinguished from their exclusive right to authorise or prohibit the fixation of their broadcasts (15) pursuant to Article 7(2) of Directive 2006/115/EC. (16) In addition, as the Commission observed at the hearing, the broadcasting organisations’ reproduction right under Article 2(e) of Directive 2001/29 is separate and distinct from their right to make available to the public fixations of their broadcasts pursuant to Article 3(2)(d) of that directive. 20. It follows that all of these rights coexist in parallel and that a limitation or exception to one right does not necessarily imply a limitation to another. (17) By way of example, the private copy exception pursuant to Article 5(2)(b) of Directive 2001/29 does not apply to the right of broadcasting organisations to make fixations of their broadcasts available to the public. (18) 21. According to the referring court, Paragraph 87(1)(2) of the UrhG transposes broadcasting organisations’ exclusive right of reproduction in fixations of their broadcasts pursuant to Article 2(e) of Directive 2001/29. The correctness of that transposition and the application of that national provision are not at issue in the present proceedings, which instead focus on the transposition into German law of the exception in Article 5(2)(b) of Directive 2001/29 to the exclusive right of reproduction that Article 2(e) thereof provides for. Paragraph 54(1) of the UrhG provides for the payment of ‘fair remuneration’ in the form of a ‘private media levy’ payable by the producers of devices and storage media used to make reproductions which are permitted pursuant, inter alia, to Paragraph 53(1) of the UrhG. (19) As previously indicated, Paragraph 53(1) of the UrhG provides for a private copying exception in respect, inter alia, of fixations of broadcasts. Paragraph 87(4) of the UrhG, however, excludes broadcasting organisations from the right to fair remuneration. C. Article 5(2)(b) of Directive 2001/29 – Exclusion of broadcasting organisations from the right to fair compensation 22. In accordance with Article 5(2)(b) of Directive 2001/29, Member States may provide for an exception or limitation to the exclusive reproduction rights in Article 2 of that directive for reproductions made by natural persons for private use on the condition that the holders of that exclusive right receive fair compensation. This is often described as the ‘private copying exception’. 23. It is settled case-law that, although Article 5(2)(b) of Directive 2001/29 is optional, where Member States choose to implement it they must guarantee rightholders the effective recovery of fair compensation. (20) Article 5(2)(b) of Directive 2001/29 provides that the private copying exception applies ‘on condition that the rightholders receive fair compensation’. That provision does not distinguish between the five categories of rightholders (21) described in Article 2 of Directive 2001/29. (22) A literal interpretation of Article 5(2)(b) of Directive 2001/29 results in the right to fair compensation benefiting all of the five categories of rightholders listed in Article 2 thereof without making any distinction between them. 24. Article 5(2)(b) of Directive 2001/29 does not, however, establish the parameters (23) for the payment of fair compensation and the Member States enjoy a broad discretion in creating such parameters.(24) As is apparent from recitals 35 and 38 of Directive 2001/29, (25) it is nevertheless the case that, as a matter of principle, the existence of harm to rightholders triggers a right to compensation. (26) Article 5(5) of Directive 2001/29 also states that the introduction of the private copying exception may not prejudice unreasonably the rightholder’s legitimate interests. (27) Compensation that overestimates (28) or underestimates the harm caused to rightholders by private copying is thus incompatible with the fair balance that is to be maintained between the interests of rightholders, guaranteed by Article 17(2) of the Charter, and the interests and fundamental rights of users of protected subject matter, in particular the freedom of expression and information that Article 11 of the Charter protects, together with the public interest. (29) Member States are not required to ensure the availability of compensation where the harm to rightholders is minimal. (30) The requirement to pay and the level of fair compensation is thus intrinsically linked to the existence and the degree of harm that private copying causes the rightholder. (31) 25. It is thus settled case-law that the person carrying out private copying must, in principle, compensate for harm caused to the rightholder. In accordance, moreover, with Article 3(h) of Directive 2014/26/EU (32), income deriving from a right to compensation that a collective management organisation collects on behalf of rightholders constitutes copyright revenue or related rights revenue. 26. While the Court accepts that remuneration systems for private copying may be imprecise (33) and that compensation may be provided in an indirect form, (34) that does not justify the exclusion of an entire category of rightholder from the right to fair compensation if those rightholders suffer harm. (35) The existence and quantum of such harm is a question of fact which cannot, in principle, be excluded or disregarded by operation of law unless there is cogent evidence that that category of rightholder suffers no more than minimal harm as a result of private copying. It is for the referring court to verify whether broadcasting organisations, such as the applicant, in fact suffer harm from the private copying of fixations of their broadcasts. 27. The applicant and the defendant claim that broadcasting organisations suffer harm, inter alia, from private copying as they face unfair competition in the market for their media library services and their advertising revenue is affected. (36) The German and Austrian Governments strongly dispute that contention. In that regard, it must be emphasised that, contrary to those governments’ claims, the assessment of harm to broadcasting organisations is not limited to the so-called ‘core activity’ of making available to the public fixations of their broadcasts protected by Article 3(2)(d) of Directive 2001/29. While broadcasting organisations may have a ‘core activity’ when viewed from a commercial perspective, they nonetheless enjoy the full range of rights Directive 2001/29 affords them subject always to the exceptions and limitations in Article 5 thereof. Broadcasting organisations enjoy distinct rights under Article 2(e) and Article 3(2)(d) of Directive 2001/29 respectively. Given the express will of the EU legislature to provide for these separate, standalone rights, it is not possible to blur the distinction between them. 28. The unequivocal terms by which Article 2(e) of Directive 2001/29 grants rights cannot be altered or undermined by an incorrect application or extension (37) of the exception in Article 5(2)(b) of that directive. (38) Nor can the right to fair compensation for broadcasting organisations be undermined by artificially classifying or delimiting the manner whereby those organisations exploit the rights Article 2(e) of Directive 2001/29 grants to them. 29. Contrary to the Italian Government’s observations, Article 5(2)(b) of Directive 2001/29 does not make the payment of fair compensation conditional upon the ‘originality’ or ‘creativity’ of the subject matter that Article 2 of that directive protects. (39) Fair compensation is conditional on both the permitted private copying of subject matter protected under Article 2 of Directive 2001/29 and the existence of harm to the rightholder. The reproduction right of authors in their works under Article 2(a) of Directive 2001/29 requires that the subject matter concerned be original and that it be the expression of the author’s own intellectual creation. (40) No such requirement is imposed in respect of the related rights of broadcasting organisations pursuant to Article 2(e) of Directive 2001/29 or on phonogram producers or film producers pursuant to Article 2(c) and (d) thereof. Article 5(2)(b) of Directive 2001/29 thus falls to be applied in a manner consistent with the principle of equal treatment, enshrined in Article 20 of the Charter, according to which comparable situations must not be treated differently and different situations must not be treated in the same way unless such treatment is objectively justified. (41) 30. The fact that broadcasting organisations may receive fair compensation in respect of private copying of films they produce is also irrelevant. Each of the exclusive rights under Article 2(d) and (e) of Directive 2001/29 is separate and distinct. Pursuant to Article 5(2)(b) of that directive, fair compensation is, in principle, due in respect of private copying of the subject matter protected by each of those rights. The reproduction of a fixation of a broadcast may thus give rise to different, independent rights to fair compensation for broadcasting organisations pursuant to Article 5(2)(b) of Directive 2001/29. (42) D. Application of Article 2(e) and Article 5(2)(b) of Directive 2001/29 to the present proceedings – Dispute between two companies – Principles of primacy of EU law and direct effect – Emanations of the State 31. Given that the referring court seeks an interpretation of a directive in the context of a dispute between two private limited liability companies, (43) it is necessary to examine, in the light of the Commission’s observations,(44) the applicability of any ruling that the Court may give. 32. The principle of primacy of EU law requires, inter alia, that national courts interpret, to the greatest extent possible, their national law so as to make it conform with EU law. It is thus incumbent on the referring court to examine, in particular, whether Paragraph 87(4) of the UrhG can be given an interpretation that conforms with Article 2(e) and Article 5(2)(b) of Directive 2001/29. That requirement is nevertheless limited by general principles of law, which include the requirement that provisions of national law are not to be interpreted contra legem. (45) 33. Without pre-empting the referring court’s ultimate interpretation of its national law, the request for a preliminary ruling states that ‘broadcasting organisations are completely excluded from the entitlement to compensation under national copyright law’. It thus seems uncertain that the referring court will be in a position to interpret the relevant national law provisions, notably Paragraph 87(4) of the UrhG, in such a manner as to make them conform with Article 2(e) and Article 5(2)(b) of Directive 2001/29. 34. Where the referring court is unable to adopt a conforming interpretation of national law, the principle of the primacy of EU law requires it, in a pending case, to disapply any provision of national law which is contrary to an applicable provision of Directive 2001/29 that has direct effect. (46) 35. In my view, both Article 2(e) and Article 5(2)(b) of Directive 2001/29 have such direct effect. 36. The reproduction right in Article 2(e) of Directive 2001/29 is defined in clear, unequivocal terms.(47) It is unqualified and its implementation and effects are neither contingent upon nor subject to Member States adopting measures in any particular form. It follows that Article 2(e) of Directive 2001/29 constitutes a measure of full harmonisation of the broadcasting organisations’ exclusive right of reproduction of fixations of their broadcasts and that Member States have no discretion in implementing that provision. (48) 37. Article 5(2)(b) of Directive 2001/29 unequivocally imposes on those Member States that choose to implement the private copying exception thereunder an unconditional and precise obligation to ensure that rightholders receive fair compensation. (49) While Directive 2001/29 does not provide further details concerning the various elements of the system of fair compensation, and the Member States enjoy a broad discretion in that context, the obligation to ensure that rightholders receive fair compensation has direct effect. The holder of the reproduction right must, ‘by operation of law, directly and originally, be [entitled] to the right to the fair compensation provided for in Article 5(2)(b) of Directive 2001/29 under the “private copying” exception’ and ‘must “necessarily” [be paid fair] compensation’. (50) 38. The question that arises in the present case is whether the applicant can rely on Article 2(e) and Article 5(2)(b) of Directive 2001/29 in proceedings against the defendant in order to have national legislation contrary to those provisions set aside. The third paragraph of Article 288 TFEU provides that directives cannot, of themselves, impose obligations on individuals and therefore cannot be relied on as such against individuals before a national court. Even clear, precise and unconditional provisions of a directive, such as those in Article 2(e) and Article 5(2)(b) of Directive 2001/29, do not enable a national court to disapply a provision of its national law that conflicts with them if, were that court to do so, it would impose an additional obligation upon an individual. (51) 39. A directive may nevertheless be relied on against a Member State, regardless of the capacity in which the latter acts. A national court is obliged to set aside a provision of national law that is contrary to a directive where that directive is relied on against a Member State, the organs of its administration, such as decentralised authorities, or organisations or bodies which are subject to the authority or control of the State or which a Member State requires to perform a task in the public interest and, for that purpose, possesses special powers beyond those which result from the normal rules applicable to relations between individuals. (52) 40. At the hearing, both the defendant and the German Government confirmed that the defendant is a collective management organisation upon which the law has conferred special powers and that it must act in the public interest. It follows that, should the referring court find itself unable to interpret Paragraph 87(4) of the UrhG so as to conform with Article 2(e) and Article 5(2)(b) of Directive 2001/29, the applicant may rely upon the latter provisions in its dispute with the defendant in order to seek to persuade that court to disapply Paragraph 87(4) of the UrhG. VI. Conclusion 41. In the light of the foregoing considerations, I propose that the Court answer the questions referred by the Landgericht Erfurt (Regional Court, Erfurt, Germany) as follows: Article 2(e) and Article 5(2)(b) of 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 must be interpreted as precluding a Member State from providing a private copying exception to the exclusive reproduction right of broadcasting organisations in fixations of their broadcasts while excluding a right to fair compensation in respect of that copying where it causes them more than minimal harm. The fact that broadcasting organisations may be entitled to fair compensation pursuant to Article 5(2)(b) of Directive 2001/29 in their capacity as film producers is irrelevant. 1 Original language: English. 2 SAT.1 Gold is a private television channel financed through advertising. 3 Directive 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), as last amended by Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC (OJ 2019 L 130, p. 92). 4 And for ends that are neither directly nor indirectly commercial. 5 Article 2(d) of Directive 2001/29. 6 BGBl. 1965 I, p. 1273. 7 Which excludes broadcasting organisations from the right to receive fair compensation. 8 Judgments of 21 October 2010, Padawan (C‑467/08, EU:C:2010:620, paragraph 36); of 16 June 2011, Stichting de Thuiskopie (C‑462/09, EU:C:2011:397, paragraph 34); and of 9 June 2016, EGEDA and Others (C‑470/14, EU:C:2016:418, paragraph 21). 9 The German Government considers that it is for the Member States to fix that threshold. 10 The German Government considers that ‘where a private user records a broadcast, a distinction must therefore be drawn between the recording of the broadcast and the recording of the broadcast content. The broadcaster does not suffer any direct economic loss as a result of the recording of the programme’. 11 Judgment of 27 June 2013, VG Wort and Others (C‑457/11 to C‑460/11, EU:C:2013:426, paragraph 61). 12 The dichotomy between copyright stricto sensu and related or neighbouring rights is reflected at international level by the separate protection granted, inter alia, under the Berne Convention for the Protection of Literary and Artistic Works (Paris Act of 24 July 1971, as amended on 28 September 1979), and the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations, done at Rome on 26 October 1961 (‘the Rome Convention’). Article 13(b) of the Rome Convention provides that broadcasting organisations shall enjoy the right to authorise or prohibit the fixation of their broadcasts. Pursuant to Article 13(c)(i) thereof, they enjoy the right to authorise or prohibit the reproduction of fixations, made without their consent, of their broadcasts. 13 Judgment of 4 October 2011 (C‑403/08 and C‑429/08, EU:C:2011:631, paragraphs 148 to 150). 14 For example, both the principal director, in his or her capacity as author of the cinematographic work, and the producer, as the person responsible for the investment necessary for the production of that work, are holders of the reproduction right in a broadcast film. See Article 2(a) and (d) of Directive 2001/29 and judgment of 9 February 2012, Luksan (C‑277/10, EU:C:2012:65, paragraph 92). 15 Whether these broadcasts are transmitted by wire or over the air, including by cable or by satellite. 16 Directive of the European Parliament and of the Council of 12 December 2006 on rental right and lending right and on certain rights related to copyright in the field of intellectual property (OJ 2006 L 376, p. 28). For an overview of the different related rights of broadcasting organisations in the European Union, see judgment of 8 September 2022, RTL Television (C‑716/20, EU:C:2022:643, paragraph 58). 17 Judgment of 29 November 2017, VCAST (C‑265/16, EU:C:2017:913, paragraphs 40 and 52). It would appear, subject to verification by the referring court, that Paragraph 87 of the UrhG reflects this distinction. See point 7 of the present Opinion. 18 See, to that effect, Opinion of Advocate General Szpunar in Ocilion IPTV Technologies (C‑426/21, EU:C:2022:999, points 42 to 44). 19 Given the practical difficulties in identifying private users and obliging them to compensate rightholders, and the fact that each private use, considered separately, may cause minimal harm and not give rise to an obligation for payment,Member States may establish a ‘private copying levy’ for the purposes of financing fair compensation chargeable not to the private persons concerned, but to those who make digital reproduction equipment, devices and media available to private users or provide copying services for them. Under such a system, the persons having that equipment pay a private copying levy, which they in turn pass on in the price charged for making the reproduction equipment, devices and media available, or in the price for the copying service supplied. The private user thus ultimately bears the burden of the levy. Judgments of 24 March 2022, Austro-Mechana (C‑433/20, EU:C:2022:217, paragraph 45), and of 8 September 2022, Ametic (C‑263/21, EU:C:2022:644, paragraphs 37 and 38). 20 Judgments of 16 June 2011, Stichting de Thuiskopie (C‑462/09, EU:C:2011:397, paragraph 34), and of 8 September 2022, Ametic (C‑263/21, EU:C:2022:644, paragraph 69 and the case-law cited). 21 It is also settled case-law that the different exceptions and limitations to the reproduction right provided for in Article 5(2) of Directive 2001/29 must, as derogations, be interpreted strictly. Judgment of 10 April 2014, ACI Adam and Others (C‑435/12, EU:C:2014:254, paragraphs 21 and 22). 22 See judgment of 11 July 2013, Amazon.com International Sales and Others (C‑521/11, EU:C:2013:515, paragraphs 17 and 18). See, by analogy, judgment of 9 February 2012, Luksan (C‑277/10, EU:C:2012:65, paragraphs 90 to 94). 23 Such as the form of, arrangements for and level of such compensation. 24 Judgments of 9 June 2016, EGEDA and Others (C‑470/14, EU:C:2016:418, paragraphs 21 and 22 and the case-law cited), and of 24 March 2022, Austro-Mechana (C‑433/20, EU:C:2022:217, paragraphs 36 to 38). 25 Recital 35 of Directive 2001/29 provides that ‘[i]n certain cases of exceptions or limitations, rightholders should receive fair compensation to compensate them adequately for the use made of their protected works or other subject-matter. When determining the form, detailed arrangements and possible level of such fair compensation, account should be taken of the particular circumstances of each case. When evaluating these circumstances, a valuable criterion would be the possible harm to the rightholders resulting from the act in question. In cases where rightholders have already received payment in some other form, for instance as part of a licence fee, no specific or separate payment may be due. … In certain situations where the prejudice to the rightholder would be minimal, no obligation for payment may arise’. Recital 38 of Directive 2001/29 provides that ‘Member States should be allowed to provide for an exception or limitation to the reproduction right for certain types of reproduction of audio, visual and audio-visual material for private use, accompanied by fair compensation. …’. 26 Judgment of 22 September 2016, Microsoft Mobile Sales International and Others (C‑110/15, EU:C:2016:717, paragraph 26 and the case-law cited). 27 Article 5(5) of Directive 2001/29 applies to rightholders in general. It does not distinguish between copyright holders and holders of related rights. 28 Compensation should not exceed the possible harm to the rightholders and may not be claimed in respect of copies made for commercial purposes. See, by analogy, judgment of 24 March 2022, Austro-Mechana (C‑433/20, EU:C:2022:217, paragraphs 50 and 53). See also judgment of 8 September 2022, Ametic (C‑263/21, EU:C:2022:644, paragraphs 39 to 43). 29 Recital 3 of Directive 2001/29 states that ‘harmonisation … relates to compliance with the fundamental principles of law and especially of property, including intellectual property, and freedom of expression and the public interest’. According to recital 31 of Directive 2001/29, ‘[a] fair balance of rights and interests between the different categories of rightholders, as well as between the different categories of rightholders and users of protected subject-matter must be safeguarded …’. 30 Judgment of 5 March 2015, Copydan Båndkopi (C‑463/12, EU:C:2015:144, paragraph 59). See, by analogy, judgment of 9 March 2021, VG Bild-Kunst (C‑392/19, EU:C:2021:181, paragraph 54 and the case-law cited). 31 Judgment of 21 October 2010, Padawan (C‑467/08, EU:C:2010:620, paragraphs 39 to 42). In paragraph 42 of that judgment, the Court stated that ‘fair compensation must necessarily be calculated on the basis of the criterion of the harm caused to authors of protected works by the introduction of the private copying exception’. Recital 35 of Directive 2001/29 also refers. 32 Directive of the European Parliament and of the Council of 26 February 2014 on collective management of copyright and related rights and multi-territorial licensing of rights in musical works for online use in the internal market (OJ 2014 L 84, p. 72). See also judgment of 8 September 2022, Ametic (C‑263/21, EU:C:2022:644, paragraph 46). 33 The Austrian Government indicated at the hearing that fair compensation is generally regulated in an abstract manner, as compensation cannot be assessed in every single case. The Court has stated that Article 5(2)(b) of Directive 2001/29 does not preclude a rebuttable presumption that blank or recording media are used for private purposes where they are marketed to natural persons, provided that the presumption does not result in the imposition of the private copying levy in cases where the final use of those media is for clearly commercial purposes. See, to that effect, judgment of 11 July 2013, Amazon.com International Sales and Others (C‑521/11, EU:C:2013:515, paragraph 45). 34 Judgment of 11 July 2013, Amazon.com International Sales and Others(C‑521/11, EU:C:2013:515, paragraphs 49 and 51). 35 Which exceeds minimal harm. 36 Advocate General Szpunar indicated that ‘recording a television programme makes it possible, first, to watch that programme outside [its scheduled time slot and], second, to keep a copy in order to watch it again or to transfer it to equipment other than the television set, such as a mobile device. This therefore constitutes an additional service in relation to the initial broadcasting. Television organisations might wish to provide a service of this kind themselves, thereby exploiting works in which they hold the rights and generating additional revenue from them’. Private broadcasting organisations are, moreover, mainly financed by advertising revenue. That revenue is reduced by private copying. See to that effect, Opinion in VCAST (C‑265/16, EU:C:2017:649, points 67 and 68). The defendant emphasised that private broadcasters, unlike public broadcasters, have no other source of compensation for private copying since they obtain no benefit from licence fees levied on viewers. 37 Failure to pay fair compensation when it is due extends the scope of the exception in Article 5(2)(b) of Directive 2001/29 and limits the rights Article 2 thereof grants in a manner that the EU legislature could not have foreseen. 38 Article 5(2)(b) of Directive 2001/29 cannot extend beyond its express terms. The exception to the reproduction right does not, therefore, include the right to fair compensation and the exclusive rightholder cannot waive that right: judgment of 9 February 2012, Luksan (C‑277/10, EU:C:2012:65, paragraph 105). Notwithstanding the EU legislature’s express intention to allow Member States to derogate from the exclusive reproduction right, to do so in a manner other than that provided for in Article 5 thereof would endanger the effectiveness of the harmonisation of copyright and related rights to which that directive gives effect, as well as the objective of legal certainty that it pursues. See, by analogy, judgment of 29 July 2019, Pelham and Others (C‑476/17, EU:C:2019:624, paragraphs 60 to 63). 39 While the recitals of Directive 2001/29 refer in certain instances to the need to promote creativity, they refer equally to the need to ensure that rightholders are rewarded and receive a return on their investment. See recitals 4, 10 and 11 of Directive 2001/29. 40 Judgments of 13 November 2018, Levola Hengelo (C‑310/17, EU:C:2018:899, paragraphs 36 and 37), and of 11 June 2020, Brompton Bicycle (C‑833/18, EU:C:2020:461, paragraphs 21 and 22). See also judgment of 16 July 2009, Infopaq International(C5/08, EU:C:2009:465, paragraphs 33 to 35). 41 See, to that effect, judgment of 8 September 2022, Ametic (C‑263/21, EU:C:2022:644, paragraph 56 and the case-law cited). Member States must apply the exception contained in Article 5(2)(b) of Directive 2001/29 consistently. That requirement would be undermined were Member States free to provide a private copying exception that does not comply with the express terms of that provision to the effect that rightholders must receive fair compensation. 42 The defendant stated at the hearing that broadcasting organisations produce only 1% of the content that they broadcast. Radio broadcasters are not film producers and do not have a right to fair compensation in that capacity. It thus appears, subject to verification by the referring court, that the issues at the heart of its second question are of little or no practical relevance for the determination of the proceedings before it. 43 Gesellschaft mit beschränkter Haftung (GmbH). 44 The Commission submits that the referring court must first examine whether Paragraph 87(4) of the UrhG can be interpreted in conformity with Article 5(2)(b) of Directive 2001/29. If this is not possible, the Commission considers that unconditional and sufficiently precise provisions of a directive may be relied upon against organisations or bodies that have special powers beyond those that result from the normal rules applicable to relations between individuals. While it is ultimately a matter for the referring court, the defendant – the collective management organisation – appears to have special powers such that the applicant can rely on unconditional and sufficiently precise provisions of Directive 2001/29 against it in these proceedings. 45 Judgment of 18 January 2022, Thelen Technopark Berlin (C‑261/20, EU:C:2022:33, paragraphs 25, 27 and 28 and the case-law cited). 46 Ibid., paragraphs 28 to 30 and the case-law cited. 47 Recital 21 of Directive 2001/29 states that acts covered by the reproduction right must be given a broad definition. That requirement is evident from the text of Article 2 of Directive 2001/29 and the use of expressions such as ‘direct or indirect’, ‘temporary or permanent’, ‘by any means’ and ‘in any form’ therein. Judgment of 16 July 2009, Infopaq International (C‑5/08, EU:C:2009:465, paragraphs 40 to 42). 48 See, by analogy, judgment of 29 July 2019, Pelham and Others (C‑476/17, EU:C:2019:624, paragraphs 83 to 85 and the case-law cited). See also judgment of 29 July 2019, Funke Medien NRW (C‑469/17, EU:C:2019:623, paragraphs 35 to 38). 49 See, by analogy, judgment of 9 June 2016, EGEDA and Others (C‑470/14, EU:C:2016:418, paragraph 20). 50 See, to that effect, judgment of 9 February 2012, Luksan (C‑277/10, EU:C:2012:65, paragraphs 95 to 109). See also judgment of 21 October 2010, Padawan (C‑467/08, EU:C:2010:620, paragraph 37). The Court held that the concept of ‘fair compensation’ within the meaning of Article 5(2)(b) of Directive 2001/29, is an autonomous concept of EU law which must be interpreted uniformly in all the Member States that have introduced a private copying exception, irrespective of their discretion to determine the detailed arrangements for, and the level of, that compensation. 51 Judgment of 18 January 2022, Thelen Technopark Berlin (C‑261/20, EU:C:2022:33, paragraphs 31 and 32 and the case-law cited). See also judgments of 27 March 2019, Pawlak (C‑545/17, EU:C:2019:260, paragraphs 89 and 90), and of 30 April 2020, D. Z. – Airline Management Solutions (C‑584/18, EU:C:2020:324, paragraph 81). 52 Judgment of 7 August 2018, Smith (C‑122/17, EU:C:2018:631, paragraph 45). See also judgment of 2 March 2021, Commission v Italy and Others (C‑425/19 P, EU:C:2021:154, paragraph 77). The condition that the organisation be subject to the control of the State or possess special powers beyond those which result from the normal rules applicable to relations between individuals is not conjunctive. Judgment of 10 October 2017, Farrell (C‑413/15, EU:C:2017:745, paragraphs 22 to 29).