Opinion of the Advocate General — ECLI:EU:C:2013:34
Date: 2013-01-24
Language of the case: German
Subject matter: Intellectual, industrial and commercial property;Approximation of laws;Copyright and related rights
Procedure: Reference for a preliminary ruling
Origin: Germany

summary, I have written in visual terms with regard to analogue images, but comparable techniques apply in the case of reproductions for the visually impaired. Braille embossers produce text from digital data on much the same lines as printers, and use paper as an output medium. Other devices can produce embossed versions of images which would be perceived visually by the sighted. I do not consider that such reproductions fall outwith the reproduction right or, thus, outwith Article 5(2) or (3) of the Directive. They should be presumed to be included in my analysis even though, for the sake of simplicity of language alone, I shall continue to refer to analogue input and output primarily in visual terms. 42 – In the explanatory memorandum to its original proposal for the Directive, the Commission stated: ‘This provision is limited to reprography, i.e. to techniques which allow a facsimile, or in other words a paper print. It does not focus on the technique used but rather on the result obtained, which has to be in paper form.’ Although that statement concentrates on output rather than input, it seems to me that the term ‘facsimile’ necessarily implies an equivalence of form between input and output. 43 – See point 9 above. 44 – Green paper on copyright and related rights in the information society (COM(95) 382 final), Proposal for a European Parliament and Council Directive on the harmonisation of certain aspects of copyright and related rights in the information society (COM(97) 628 final) (see also footnote 42 above), Amended proposal for a European Parliament and Council Directive on the harmonisation of certain aspects of copyright and related rights in the information society (COM(99) 250 final). 45 – See also Case C‑5/08 Infopaq International [2009] ECR I‑6569, paragraph 64. 46 – See points 41 and 42 above. 47 – Paragraphs 38 to 50; see also Stichting de Thuiskopie, cited in footnote 11, paragraphs 18 to 29. 48 – Padawan, paragraphs 51 to 59. 49 – See, for example, Case C‑275/06 Promusicae [2008] ECR I‑271, paragraph 68. 50 – See recital 31 in the preamble to the Directive. 51 – See points 13 and 14 above. 52 – It is noted in several of the observations that the German version of Article 5(2)(b) differs: it requires account to be taken of whether such measures have been applied (‘ob technische Maßnahmen … angewendet wurden’). The Spanish version is similar (‘si se aplican o no’) but other versions are closer to the more neutral formulation in English or French. 53 – Recital 35 in the preamble to the Directive states: ‘The level of fair compensation should take full account of the degree of use of technological protection measures referred to in this Directive.’ 54 – The existence of such measures (which include the use of holograms, watermarks and special inks) may explain the reference to Article 5(2)(a) in the first subparagraph of Article 6(4) of the Directive, in relation to the protection to be provided against the circumvention of effective technological measures. 55 – See Council Common Position (EC) No 48/2000 (OJ 2000 C 344, p. 1, point 24 of the Statement of the Council’s reasons). 56 – Fair compensation for private copying in a converging environment, December 2006, produced by Fujitsu, pp. 60 and 61. 57 – Cited in footnote 11, paragraphs 40 and 42. (The English version of the judgment refers in paragraph 40 to ‘recompense’ for the harm suffered, but that does not seem to me to reflect the French ‘contrepartie’ or the Spanish ‘contrapartida’.) 58 – See also footnote 52 above; the German version appears to support this view even more strongly. 59 – See point 35 above. 60 – Paragraphs 39, 40 and 45. 61 – See footnote 33 above. 62 – See point 9 above. 63 – See footnote 18 above. 64 – See, for a recent example, Case C‑97/11 Amia [2012] ECR, paragraph 28. 65 – See Case C‑212/04 Adeneler and Others [2006] ECR I‑6057, paragraphs 113 to 115. 66 – See Adeneler and Others, cited in footnote 65, paragraph 123, and Joined Cases C‑261/07 and C‑299/07 VTB-VAB and Galatea [2009] ECR I‑2949, paragraph 39. 67 – See VTB-VAB and Galatea, cited in footnote 66, paragraph 35. 68 – Several observations state that printers and personal computers have a typical life-cycle of three to four years. The same type of consideration (though not necessarily the same typical life-cycle) would apply to levies on blank recording media to provide fair compensation for reproduction of audio or audiovisual material, when the levy is collected on the sale of the recording medium before the reproduction takes place. 69 – Point 51 of the statement of reasons.