Provisional text
OPINION OF ADVOCATE GENERAL
SZPUNAR
delivered on 26 February
2026 (1)
Case C‑840/24
Verwertungsgesellschaft Wort (VG Wort)
v
TL
(Request for a preliminary ruling from the Bundesgerichtshof (Federal Court of Justice, Germany))
( Reference for a preliminary ruling – Copyright and related rights – Directive
2001/29/EC – Article 5(2)(b) – Private copying exception – Fair compensation – Directive
2006/115/EC – Article 6(1) – Derogation from the public lending right – Right to remuneration – Collecting society – Directive
2014/26/EU – Article 11(4) – Article 12(4) – Use of rights revenue managed by a collecting society – National legislation providing for the promotion of works of cultural importance )
Introduction
1.        Although Article 17(2) of the Charter of Fundamental Rights of the European Union associates the protection of intellectual property with the general right to property, there is no doubt in my mind that intellectual property plays a specific role, different from that of the ownership of material objects.
2.        That is particularly true as regards literary and artistic property, protected by copyright and related rights. The primary purpose of that property and of the law protecting it is to contribute to artistic and scientific creation, which are essential to the functioning of any human society. Whilst that contribution consists mainly of ensuring that authors and performers receive fair financial return for their efforts, by allowing them to concentrate fully to their creative pursuits, it should not be limited to that but must also pursue more general objectives of contributing to cultural development.
3.        Collective management organisations constitute the cornerstone in the functioning of any copyright and related rights system, playing the role of intermediary between creators – rightholders and those exploiting their creations. Those organisations grant licences for the exploitation of protected works or other subject matter and distribute the revenue derived therefrom to those entitled to it. However, their role does not end there. Those organisations are often called upon to perform various other cultural or social tasks, in accordance with the societal function of artistic and literary property.(2)
4.        The present case relates to whether and to what extent EU law allows those organisations to allocate a portion of the revenue collected, and particularly certain categories of revenue, to cultural activities that may benefit not only the holders of copyright and related rights but also other categories of person.
Legal context
European Union Law
5.        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 (3) provides:
‘Member States may provide for exceptions or limitations to the reproduction right provided for in Article 2 in the following cases:
…
(b)      in respect of reproductions on any medium made by a natural person for private use and for ends that are neither directly nor indirectly commercial, on condition that the rightholders receive fair compensation which takes account of the application or non-application of technological measures referred to in Article 6 to the work or subject matter concerned’.
6.        Article 6(1) of Directive 2006/115/EC 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 (4) provides:
‘Member States may derogate from the exclusive right provided for in Article 1 in respect of public lending, provided that at least authors obtain a remuneration for such lending. Member States shall be free to determine this remuneration taking account of their cultural promotion objectives.’
7.        Article 3(h) of Directive 2014/26/EU 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 (5) defines the wording ‘rights revenue’ as ‘income collected by a collective management organisation on behalf of rightholders, whether deriving from an exclusive right, a right to remuneration or a right to compensation’.
8.        Article 4 of that directive provides that
‘Member States shall ensure that collective management organisations act in the best interests of the rightholders whose rights they represent and that they do not impose on them any obligations which are not objectively necessary for the protection of their rights and interests or for the effective management of their rights’.
9.        Article 8(5)(d) of that directive provides that: ‘In accordance with the provisions laid down in Chapter 2 of Title II, the general assembly of members shall decide at least on the following issues:
…
(d)      the general policy on deductions from rights revenue and from any income arising from the investment of rights revenue’.
10.      Article 11(4) of the same directive provides that ‘a collective management organisation shall not be permitted to use rights revenue or any income arising from the investment of rights revenue for purposes other than distribution to rightholders, except where it is allowed to deduct or offset its management fees in compliance with a decision taken in accordance with point (d) of Article 8(5) or to use the rights revenue or any income arising from the investment of rights revenue in compliance with a decision taken in accordance with Article 8(5)’.
11.      Article 12(2) and Article 12(4) of Directive 2014/26 provide:
‘2.      Deductions shall be reasonable in relation to the services provided by the collective management organisation to rightholders, including, where appropriate, the services referred to in paragraph 4, and shall be established on the basis of objective criteria.
…
4.      Where a collective management organisation provides social, cultural or educational services funded through deductions from rights revenue or from any income arising from the investment of rights revenue, such services shall be provided on the basis of fair criteria, in particular as regards access to, and the extent of, those services.’
German Law
12.      Until 1 June 2016, the activities of collective management organisations for copyright and related rights were regulated, under German law, by the Gesetz über die Wahrnehmung von Urheberrechten und verwandten Schutzrechten (Urheberrechtswahrnehmungsgesetz) (Law on the management of
copyright and related rights) of 9 September
1965 (6) and then by the Gesetz über die Wahrnehmung von Urheberrechten und verwandten Schutzrechten durch Verwertungsgesellschaften (Law
on the management of copyright and related rights by collecting societies) of 24 May 2016.(7)
13.      Under those two laws, in the versions applicable to the dispute in the main proceedings, collective management organisations are required to distribute the revenue derived from their activities according to set
rules (a distribution plan) that avoid any arbitrary distribution practices. Those organisations were also called upon to promote works and services of cultural importance.
Facts, procedure and the questions referred for a preliminary ruling
14.      Verwertungsgesellschaft Wort (‘VG Wort’) is a collective copyright management organisation for literary works in Germany. VG Wort’s articles of association, in the versions in force during the period at issue, namely 1 January 2016 to 30 September 2019, provided for the payment of a subsidy to
Förderungsfonds Wissenschaft der VG Wort GmbH (VG Wort Funds for the Promotion of Science) (‘FFW’), a limited liability company of which VG Wort is the sole partner. FFW seeks to promote science and research. That promotion involves funding printing costs in relation to the publication of scientific and specialist works, research leading to scientific and specialist works and other initiatives for the promotion of scientific and specialist literature,
including grants to support the production of doctoral theses on copyright. According to information provided by VG Wort, the subsidy to FFW was financed by deductions from revenue collected as compensation for private copying and as remuneration for public lending of scientific, technical and specialist works; it amounted, during the period in dispute, to 0.51% of the revenue collected by VG Wort.
15.      TL and OS, authors of literary works, are members of, and have entered into management contracts with, VG Wort. During the period at issue, they declared several works to VG Wort and received payments from the revenue generated by that organisation for the ‘reproduction of an existing text’. In the main proceedings, TL is acting in a personal capacity and on behalf of OS, who has assigned his rights to him.
16.      TL disputes the fact that VG Wort set aside sums for FFW from the revenue that organisation had collected between 1 January 2016 and 30 September 2019, thereby reducing the amounts for TL and for OS. At first instance, TL
sought a declaration that VG Wort did not, and does not, have the right to reduce distributions of shares relating to their works by making payments to fund FFW. Furthermore, TL requested information on the sums paid to FFW.
17.      The appeal was upheld in part at first instance. The appeal judge confirmed the decision in favour of OS and dismissed TL’s appeal in its entirety.(8) He held that VG Wort’s distribution plans, incorporated into management contracts,
constitute general terms and conditions in which the provisions relating to payments made to FFW are null and void under national law on the ground that they are contrary to fundamental principles of the legislation governing the operation of collective management organisations, in so far as any persons would be receiving payments to which they were not entitled.
18.      Hearing an appeal on a point of law (Revision), the referring court considers that the payments made to FFW may be lawful in view of the obligation on collective management organisations to promote science and culture, as provided for in the applicable national legislation. However, that would depend on whether that obligation complies with EU law.
19.      In those circumstances, the Bundesgerichtshof (Federal Court of Justice, Germany), decided to stay the proceedings and to refer the following questions to the Court
of Justice for a preliminary ruling:
‘(1)      Is the fact that a provision of national law provides that a collecting society is to promote works of cultural importance and that, as [a] consequence thereof, recipients who are not (or, in any event, not yet) part of the group of rightholders also benefit from that promotion compatible with Article 5(2)(b) of Directive [2001/29], with the first sentence of Article 6(1) of Directive [2006/115], and with Article 11(4) and Article 12(4) of Directive [2014/26]?
(2)      In the event that the provision of social, cultural or educational services under Article 12(4) of Directive [2014/26] is permitted only to rightholders: Does the permissibility of providing such services depend on the recipient of those services having a present right to remuneration, or is it sufficient to hold a present copyright or related right that is not currently remunerated? Is the permissibility of such services conditional upon the existence of a management agreement with the collecting society?’
20.      The request
for a preliminary ruling was received at the Court
on 10 December 2024. Written observations were submitted by the parties to the main proceedings, the Austrian and German Governments and the European Commission. The same parties and the French Government were represented at the hearing held on 26 November 2025.
Analysis
21.      In the present case, the referring court refers two questions for a preliminary ruling. In so far as the second of the questions referred is conditional upon the answer to the first, I shall examine these questions in the order in which they were asked.
The first question referred
22.      By the first of its questions, the referring court asks the Court of Justice to interpret Article 5(2)(b) of Directive 2001/29, Article 6(1) of Directive 2006/115 and Article 11(4) and Article 12(4) of Directive 2014/26. Whilst the Court places those provisions on an equal footing, they cover different matters. Whereas the relevant provisions of Directive 2014/26 relate, generally speaking, to the collective management of copyright and related rights, those in Directives 2001/29 and 2006/115 grant specific rights to authors, namely a right to compensation and a right to remuneration, due to the particular purposes of their works.
23.      However, as is apparent from the request for a preliminary ruling, and as VG Wort also confirmed at the hearing, the dispute in the main proceedings concerns the use by that organisation of revenue covered by the relevant provisions of Directives 2001/29 and 2006/115. It seems to me, therefore, that really the referring court is seeking clarification on interpretation of the relevant provisions of Directive 2014/26 in the light of those of Directives 2001/29 and 2006/115, as well as of
the relevant case-law of the Court.
24.      Accordingly, by the first of its questions, the referring court asks,
in essence, whether Article 11(4) and Article 12(4) of Directive 2014/26, read in conjunction with Article 5(2)(b) of
Directive 2001/29 and Article 6(1) of Directive 2006/115, must be interpreted as being in conflict with Member State legislation which permits a collective management organisation to allocate part of the rights revenue derived from the right to fair compensation and the right to remuneration, referred to in the two last-mentioned provisions, respectively, to cultural activities that may, where applicable, benefit persons who do not hold copyrights.
That question rests on the premiss, not disputed by the parties, that the services at issue in the main proceedings constitute ‘cultural’ or ‘educational’ services, within the meaning of Directive 2014/26.
25.      To answer that question, it is necessary to analyse the provisions of Directive 2014/26, as well as Article 5(2)(b) of Directive 2001/29 and Article 6(1) of Directive 2006/115. Before I begin to examine those provisions, I consider that it is necessary at the outset to make a few general remarks.
Preliminary remarks
26.      As I have already mentioned in the introduction to this Opinion, in accordance with the particular role of literary and artistic property in society, the role of collective copyright management organisations is not limited to distributing the revenue derived from exploitation of those rights to the rightholders. Collective copyright management organisations have traditionally had other
functions, primarily social (which dates back to 1897 (9)), then cultural and educational.(10) Their role cannot therefore be equated, as the applicants in the main proceedings appear to be claiming, with that of an investment fund, the sole objective of which is to generate revenue and to distribute it depending on the capital invested. The collective
management of literary and artistic property rights takes place in the collective interest not only of rightholders but also of users of works and of the public.
27.      At the international level, there seems to be a consensus that
social, cultural and educational activities may be funded
by the collection of a relatively modest portion of the revenue received by collective management organisations in respect of the exploitation of copyrights. An upper limit of 10% of that revenue is most often considered acceptable.(11) However, that threshold relates to levies on income from the exploitation of exclusive rights. As regards rights to remuneration, such as compensation for private copying or public lending remuneration, national legislators or collective management organisations seem to have more room for manoeuvre. (12)
28.      Activities funded in that way by collective management organisations may be of different types and benefit different categories of person. Whilst social enterprises, such as pension or support funds, usually benefit rightholders who are members of those organisations, it may be different as regards cultural and educational activities. The latter may indeed benefit
not only rightholders but also the general public or particular categories of person, as is the case in the main proceedings, which concerns, in particular, bursaries intended for young authors who are potential future copyright holders.
29.      EU law takes into account that cultural dimension of the activities of collective management organisations. Accordingly, recital 3 of Directive 2014/26 states that ‘collective management organisations play, and should continue to play, an important role as promoters of the diversity of cultural expression, both by enabling the smallest and less popular repertoires to access the market and by providing social, cultural and educational services for the benefit of their rightholders and the public’. However, the question that arises in this case is whether the provisions of that directive allow those organisations to provide such services.
The provisions of Directive 2014/26
30.      In accordance with Article 3(h) of Directive 2014/26,
the term ‘rights revenue’ includes all revenue collected by the collective management organisation on behalf of rightholders, including revenue pursuant to
a
right to remuneration or to compensation, such as remuneration for public lending or compensation for private copying. All such revenue is
therefore, in principle, subject to the same rules.
31.      As regards the use of that revenue, Article 11(4) of Directive 2014/26 provides that collective management organisations shall not be
permitted to use it other than for distribution to rightholders, ‘except where it is allowed to deduct or offset its management fees in compliance with a decision taken in accordance with [Article 8(5)(d)] or to use the rights revenue … in compliance with a decision taken in accordance with Article 8(5)’.(13)
32.      That provision is not crystal clear. The distinction made between, on the one hand, deduction or compensation of management fees by reason of a decision taken in accordance with Article 8(5)(d) of Directive 2014/26 and, on the other hand, the use of revenue authorised under that Article 8(5) in general seems to imply that the only deductions allowed under that provision are those intended to cover copyright management costs. Indeed, that seems to be the interpretation favoured by the Commission.
33.      However, there is no such limitation apparent in the wording of Article 8(5)(d) of Directive 2014/26, which refers to ‘the general policy on deductions from rights revenue and from any income arising from the investment of rights revenue’, without specifying the purpose of those deductions. However, I consider that, if the EU legislature had wanted to limit the right of the general assembly of members of a collective management organisation to authorise deductions
from rights revenue solely for the purpose of covering management costs, that would be expressly provided for in Article 8(5)(d) of Directive 2014/26. In the absence of such an express limitation, there is no basis for inferring it implicitly from Article 11(4) of that directive.
34.      That finding is supported by Article 12 of Directive 2014/26, which refers specifically to deductions from rights revenue. Article 12(4) thereof expressly provides that ‘social, cultural or educational services’ may be ‘funded through deductions from rights revenue’. However, if Article 11(4) of that directive were to be interpreted in such a way as to limit possible deductions to those covering management costs, it would be in conflict with Article 12(4) thereof.
35.      Consequently, I consider
that Article 11(4) of Directive 2014/26 must be interpreted as meaning that deductions made from rights revenue in order to fund social, cultural or educational services constitute one way of using that revenue that may be authorised under Article 8(5) of that directive.
36.      As regards Article 12 of Directive 2014/26, Article 12(2) thereof provides that deductions from rights revenue are, in particular, ‘in relation to the services provided by the collective management organisation to rightholders, including, where appropriate, the services referred to in paragraph 4’ thereof. However, as I have already mentioned, that Article 12(4) covers social, cultural and educational services.
37.      One could, as the Commission has done, infer from the wording
‘services provided by the collective management organisation to rightholders, including … the services referred to in paragraph 4’, that those latter services absolutely must be provided to rightholders in order to be funded by deductions from rights revenue.
38.      However, as I have just shown with regard to Article 11(4) of Directive 2014/26, the provisions thereof are not entirely accurate, therefore a
different interpretation of Article 12(2) and (4) seems feasible to me.
39.      Services which, by their nature, are ‘provided by the collective management organisation to rightholders’ are rights management services, that is to say they concern the granting of exploitation licences and the collection and distribution of revenue derived therefrom. The deductions referred to in Article 12(2) of Directive 2014/26 are intended primarily to fund
those management services. That is also the case for social services, which are usually provided by collective management organisations to their members.
40.      By contrast, as regards cultural and educational services, they may benefit categories of person other than rightholders. Moreover, those services often have several groups of beneficiaries, direct and indirect. Whilst they may be provided directly to members of the general public or to persons who are not copyright holders, any activity promoting culture or education in that field generally also benefits those rightholders indirectly.
41.      However, no provision of Directive 2014/26 explicitly requires
that cultural or educational services funded through deductions from rights revenue be provided solely by collective management organisations directly to the holders of those rights. Article 12(4) of that directive requires only that those services be provided on the basis of fair criteria. Nor does such a requirement appear in Article 13(6) of that directive, relied on by the Commission. Firstly, that provision does not relate to deductions from rights revenue but to uses of non-distributable amounts; and, secondly, it is not intended to limit the decision-making scope of the general assembly of a collective management organisation but that of Member States. Moreover, as regards recital 28
of the same directive, also relied on by the Commission, it cannot have autonomous scope, different from that of Article 8(5), Article 11(4) and Article 12(2) and (4) thereof, which I have just examined.
42.      By contrast, recital 3
of Directive 2014/26 (14) states that, according to the EU legislature, collective management organisations ‘should continue to play … an important role as promoters of the diversity of cultural expression … by providing social, cultural and educational services for the benefit of their rightholders and the public. (15) In so far as the sole objective of Article 12(2) of that directive is to ensure that deductions from rights revenue do not exceed a reasonable level, taking into account the services they are used to fund, I see no reason to draw conclusions from that provision that go beyond that objective and contradict the legislature’s intention as clearly expressed in the said recital 3.
43.      Therefore, to my mind, the relevant provisions of Directive 2014/26 do not preclude a collective management organisation from funding services, particularly cultural and educational services, provided directly not only to rightholders but also to other persons, through deductions from rights revenue it manages. Of course, the proportion of funds thus used must stay within reasonable limits, which is clear not only explicitly from Article 12(2) of that directive, but also from the general principle expressed in Article 12(4) thereof, according to which
collective management organisations must act in the best interests of the rightholders. As regards revenue derived from compensation for private copying and from remuneration for public lending, the scope of deductions has also been limited by provisions of EU law concerning those two categories of revenue as interpreted by the Court.
Article 5(2)(b) of Directive 2001/29
44.      It should be recalled that Article 5(2)(b) of Directive 2001/29 states that Member States may provide in their domestic law for an exception to the exclusive reproduction right,
in respect of reproductions made by natural persons for their private, non-commercial use (so-called ‘private copying’), ‘on condition that the rightholders receive fair compensation’.
45.      That exception stems from the recognition that modern technical capabilities enable members of the public to reproduce works and other protected subject matter for use by themselves or by their close contacts, relatively easily and at low cost, without the rightholders having effective means of controlling or opposing such reproduction.
Whilst that phenomenon could be described
not so much as an infringement of exclusive rights but rather as a natural ‘limit’ to those rights, since they do not apply in the private domain
of members of the public, (16) it is widely accepted that private copying causes harm to rightholders that must be compensated. However, as it is impossible, in practice, to collect that compensation from the members of the public concerned, a system has been devised in which, firstly, that compensation is funded by a levy collected from intermediaries – sellers of recording equipment or providers of copying services – and, secondly, the cost thereof can then be recovered in the price of such equipment or services. When Directive 2001/29 came into force, such a system already existed in the domestic law of numerous Member States.
46.      In the context of Article 5(2)(b) of Directive 2001/29, the Court has followed a similar line of reasoning, relying more on the recitals thereof than on the concise wording of the provision in question.
47.      It has held that the fair compensation referred to in that provision is intended to compensate rightholders for the harm caused to them by persons making reproductions pursuant to
the exception set out therein and that it is, in principle, for those persons to make good that harm by financing that compensation.(17) The Court has, however, accepted that, given the practical difficulties in obtaining payment of compensation from the people who actually make the copies, (18) it is open to the Member States to provide for a system for collecting levies from sellers of recording equipment or providers of copying services, who then pass the levies on to users in the prices of such equipment or services. (19) The Court has also stipulated that such levies must not be applied to equipment or services acquired for purposes clearly unrelated to the private copying exception, or by legal entities not eligible to benefit from it. (20)
48.      As regards the method of payment of fair compensation to rightholders, the Court has accepted that a part, even a significant part,
of that compensation may be paid to them indirectly, through the intermediary of social and cultural establishments set up for their benefit, provided that those establishments actually benefit those rightholders.(21)
49.      The link thus established by the Court between the private copying levy, the harm suffered by rightholders due to the private copying exception and fair compensation seems to limit considerably the discretion Member States have in this area, even though it is described as ‘broad’.(22) However, it seems to me that Directive 2014/26 has changed nothing in that regard, in so far as it does not concern the extent of rightholders’ rights but just the operating rules of the collective management organisations.
50.      By contrast, it has to be said that the impossibility of calculating accurately the different amounts that come into play is a significant element of uncertainty in that system.
51.      Whilst, even in the ‘analogue’ era, when levy systems for private copying were introduced in different countries and at international level, it was reasonable to assume that most of the recording equipment then available to individuals was intended for the reproduction of protected subject matter, (23) it was nevertheless difficult to determine precisely what
subject matter had actually been reproduced. Payment of that levy therefore had to be made on the basis of approximate criteria and a flat rate.
52.      In the digital environment, the same storage medium, often integrated into technical equipment, contains both private subject matter
created by the user and protected subject matter that may have been acquired legally from rightholders, reproduced under the private copying exemption or even acquired illegally, it being impossible to determine precisely what proportion of storage capacity those various categories of subject matter
use. Moreover, that has been explicitly considered by the Court, relying on a legal fiction whereby recording equipment made available to natural persons is presumed to be used entirely for the purposes of reproducing protected subject matter under the private copying exception, (24) whereas it is clear that, in practice, that is far from being the case.
53.      Consequently, the calculation of the harm suffered by rightholders under that exception and of the amount of levy that has to be collected in order to compensate for that harm is
necessarily affected by a high degree of uncertainty and approximation. The same applies as regards the distribution of revenue derived from that levy, since, as the Court itself has observed, ‘it is impossible in practice to determine which work was reproduced by which user and on which medium’.(25)
54.      Thus Member States have significant discretion in calculating those amounts, Directive 2001/29 requiring only that rightholders obtain fair compensation under the private copying exception and, as provided in recital 31 thereof, that a fair balance be maintained between the interests of those rightholders and of
users.
However, what is meant by ‘fair’
is left to the discretion of Member States, subject to compliance with the general principles of EU law, such as non-discrimination and proportionality.
55.      In that context, it seems perfectly possible to me that a relatively small proportion of the amounts collected under the private copying levy should be allocated by collective management organisations to the funding of cultural and educational activities that, where appropriate, benefit persons who are not rightholders, while ensuring that the latter effectively obtain fair compensation for the harm they are deemed to have suffered due to the private copying exception.
56.      That finding is not called into question by the judgment in
Hewlett-Packard Belgium, (26) in which the Court found that ‘overcompensation’ for the harm suffered by rightholders is incompatible with Article 5(2)(a) and (b) of Directive 2001/29. That judgment concerned a particular situation in which the private copying levy was collected in two stages:
prior to the reproduction process, depending on the reproduction speed of the equipment, then after that process, depending on the number of copies made. Thus,
the Court’s reasoning was, firstly, based on the premiss that that levy was paid to the rightholders in its entirety and, secondly, concerned the particular situation in which the number of copies produced, and therefore the extent of the harm suffered by the rightholders, were known. (27) However, such a situation is rare and in practice
only occurs in the case of levies collected from reproduction
services.
By contrast, where the levy is collected at the same time as recording equipment is made available to natural persons, it is not possible to make a precise calculation of the harm based on the number of reproductions. Thus the lessons from that judgment have only limited scope.
57.      Accordingly, in my view, Article 5(2)(b) of Directive 2001/29 does not preclude
a reasonably limited portion of the private copying levy from being allocated to the funding of cultural or educational activities that may benefit persons who are not rightholders, on the condition that, directly or indirectly, the rightholders obtain fair compensation under the private copying exception.
Article 6(1) of Directive 2006/115
58.      It should be recalled that
Article 6(1) of Directive 2006/115 allows Member States to derogate from the exclusive lending right, (28) in respect of ‘public lending’, provided at least that authors obtain remuneration for such lending, the amount of which is determined by the Member States
taking account of their cultural promotion objectives.
59.      That provision has not only similarities to but also significant differences from Article 5(2)(b) of Directive 2001/29.
60.      On the one hand, as the Court has had occasion to state, (29) just like the private copying exception, the public lending exception may cause harm to rightholders which the remuneration is question is intended to compensate, analogous to the fair compensation provided for in Article 5(2)(b) of Directive 2001/29.(30)
61.      On the other hand, that harm is not caused by the users but by the public bodies that offer to lend protected works under that exception. The onus is therefore on those bodies to pay the remuneration due to rightholders.(31) Since it is not stipulated that this remuneration must be ‘fair’, there is no obligation on that body to take account of the market value of the protected work in question and it may be much lower than the fair compensation provided for in other provisions of Directive
2006/115. (32) Article 6(1) of that directive therefore leaves considerable discretion to the Member States
in determining the amount of remuneration under the public lending exception. (33)
62.      The only limits to that discretion concern the criteria to be taken into account when determining the amount of that remuneration, namely the extent of the harm caused to the rightholders, as quantified by the number of works to be made available by the establishment in question and the number of borrowers registered with that establishment.(34) Moreover, that remuneration must be sufficient for rightholders to receive an adequate income, so the amount cannot be purely symbolic. (35) It is for the Member States to decide on the ‘adequate’ level of that income.
63.      By analogy with the situation as to fair compensation for private copying, in my view there is nothing to prevent remuneration from public lending being paid to rightholders indirectly, through the intermediary of social or cultural organisations established for their benefit.(36)
64.      It follows that Member States have even broader discretion for determining the remuneration under the public lending exception than for determining the amount of the private copying levy.
They are therefore, à fortiori, permitted to authorise collective management organisations to allocate part of that remuneration to the funding of cultural or educational activities that may, where appropriate, benefit persons who are not rightholders.
65.      Accordingly, I consider that Article 6(1) of Directive 2006/115 does not preclude part of the remuneration under the public lending exception being allocated to funding such activities, provided that rightholders obtain adequate remuneration therefor.
Proposed answer
66.      Consequently, I propose that the answer to the first question referred for a preliminary ruling should be that Article 11(4) and Article 12(4) of Directive 2014/26, read in conjunction with Article 5(2)(b) of Directive 2001/29 and Article 6(1) of Directive 2006/115, is to be interpreted as not precluding Member State legislation which permits a collective management organisation to allocate a part of the rights revenue derived from the right to fair compensation and from the right to remuneration, referred to in the two last-mentioned provisions, respectively, to cultural activities that may, where appropriate, benefit persons who are not copyright holders, provided that the rightholders receive, directly or indirectly, such fair compensation and such adequate remuneration.
The second question referred
67.      The second question referred for a preliminary ruling is asked in the event of the Court replying to the first question that Article 11(4) and Article 12(4) of Directive 2014/26, read in conjunction with Article 5(2)(b) of Directive 2001/29 and Article 6(1) of Directive 2006/115, precludes Member State legislation which permits a collective management organisation to allocate a part of the revenue derived from the right to fair compensation and from the right to remuneration, referred to in the two last-mentioned provisions, respectively, to cultural activities that may, where appropriate, benefit persons who are not copyright holders. However, if the Court were to follow my proposed answer to the first question, it would not be necessary to reply to the second.
Nevertheless, for the sake of completeness, I will examine it briefly.
68.      By its second question, the referring court is asking, in essence, whether Article 11(4) and Article 12(4) of Directive 2014/26, read in conjunction with Article 5(2)(b) of Directive 2001/29 and Article 6(1) of Directive 2006/115, must be interpreted as meaning that the social, cultural and educational services provided by a collective management organisation and funded by deductions from revenue derived from the right to fair compensation and from the right to remuneration, referred to in the two last-mentioned provisions, respectively, may only benefit rightholders with a present right to remuneration or who have entered into a management contract with the organisation in question. It appears to me that, by ‘present right to remuneration’, the referring court means the right to participate in the distribution of rights revenue, that is to say that the protected subject matter belonging to those holders has generated such revenue.
69.      In order to answer that question, it must be assumed that such a limitation on the possible allocation of the revenue in question stems from the interpretation of Article 11(2) and Article 12(4) of Directive 2014/26, or from the case-law relating to Article 5(2)(b) of Directive 2001/29, also applied by analogy, where applicable, to Article 6(1) of Directive 2006/115.
70.      However, both those provisions and that case-law refer in general terms to ‘rightholders’, without further clarification.
Therefore, in my view, there is no justification for inferring additional requirements as to the existence of a present right to remuneration or the contractual relationship between those rightholders and the collective management organisation in question.
71.      That is all the more so as regards the right to fair compensation for private copying or to remuneration for public lending. The management of such rights is normally entrusted to collective management organisations by law, without the need for a contractual relationship between those organisations and the rightholders. All holders of those rights are thus entitled to benefit from the revenue generated by them.
72.      Furthermore, not all rightholders obtain income from their rights on an ongoing basis. However, the benefit of the cultural services provided by a collective management organisation is not necessarily concomitant with obtaining such income.
It would therefore be both unfair and, in practice, impossible to make the former dependent on the latter.
73.      By contrast, collective management organisations have the scope of their activity defined according to the type of protected subject matter or categories of rights, as expressly provided for by Article 5(2) of Directive 2014/26. Thus, logically, where the relevant provisions of that directive refer to rightholders, those are rightholders whose rights management falls within the scope of activity of the organisation in question.
74.      To my mind, the same rule should apply as regards the use of rights revenue to fund social, cultural and educational services. If the benefit of those services were to be limited to rightholders, it should concern the rightholders whose rights management falls within the scope of activity of the organisation in question. If, for example,
a collective management organisation for literary works used the rights revenue thereof for the benefit of rightholders in musical works, that would equate to using them for the benefit of persons who are not rightholders and the limitation would lose all meaning.
75.      If the Court were not to follow my proposed answer to the first question referred, it would therefore be appropriate to reply to the second question referred for a preliminary ruling that
Article 11(4) and Article 12(4) of Directive 2014/26, read in conjunction with Article 5(2)(b) of Directive 2001/29 and Article 6(1) of Directive 2006/115, must be interpreted as meaning that social, cultural and educational services provided by a collective management organisation and funded by deductions from rights revenue derived from the right to fair compensation and from the right to remuneration, referred to in the two last-mentioned provisions, respectively, may benefit any rightholder whose rights management falls within the scope of activity of the organisation in question.
Conclusion
76.      In the light of all the foregoing considerations, I propose that the Court give the following answer to the questions referred for a preliminary ruling by the Bundesgerichtshof (Federal Court of Justice, Germany):
Article 11(4) and Article 12(4) of Directive 2014/26/EU 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, read in conjunction with 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 and Article 6(1) of Directive 2006/115/EC 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,
must be interpreted as meaning that they do not preclude Member State legislation which permits a collective management organisation to allocate a part of the rights revenue derived from the right to fair compensation and from the right to remuneration, referred to in the two last-mentioned provisions, respectively, to cultural activities that may, where appropriate, benefit persons who are not copyright holders, provided that the rightholders receive, directly or indirectly, fair compensation and adequate remuneration.
1      Original language: French.
2      On that subject, see in particular, Gervais, D., ‘The Cultural Role(s) of Collective Management Organizations’, European Intellectual Property Review, 2018, No 6, pp. 349 to 356 and the literature cited.
3      OJ 2001 L 167, p. 10.
4      OJ 2006 L 376, p. 28.
5      OJ 2014 L 84, p. 72.
6      BGBl. 1965 I, p. 1294.
7      BGBl. 2016 I, p. 1190.
8      Having found that no deduction had been made from the revenue
owed to TL.
9      See
Melichar, F., ‘Deductions Made by Collecting Societies for Social and Cultural Purposes in the Light of International Copyright Law’, International Review of Industrial Property and Copyright Law, 1991, No 1, p. 47.
10      On another point, I recall that those organisations are also often involved in efforts to combat copyright infringement.
11      See, in particular, Ficsor, M., Collective Management of Copyright and Related Rights, WIPO Publication No. 855E/22, Geneva, 2022, pp. 225
and 226.
12      Ficsor, M., footnote 11, op. cit., p. 228.
13      That provision lists the decisions reserved to the general assembly of members of the collective management organisation.
14      See point 25 of the present Opinion.
15      Emphasis added.
16      See, in particular, Vivant, M., Bruguière, J.-M., Droit d’auteur et droits voisins, Dalloz, Paris, 2016, p. 548 et seq.
17      See, in particular, judgment of 11 July 2013, Amazon.com International Sales and Others (C‑521/11,
EU:C:2013:515; ‘the judgment in Amazon’, paragraph 23
and the case-law cited).
18      It should also be noted that, in the event of such a payment, it would no longer be compensation pursuant to an exception but paid use of protected subject matter. The rationale behind the private copying exception lies in the difficulty faced by rightholders in monitoring the use of protected subject matter in the private domain of members of the public and in collecting remuneration in that regard.
19      The judgment in Amazon, paragraphs 24
and 25.
20      The judgment in Amazon, paragraph 28.
21      The judgment in Amazon, paragraphs 49
to 55.
22      The judgment in Amazon, paragraph 20.
23      Due to the few other ways of
using them.
24      See, to that effect, the judgment in Amazon, paragraphs 41 and 42 and the case-law cited.
25      The judgment in Amazon, paragraph 51.
26      Judgment of 12 November
2015 (C‑572/13, EU:C:2015:750, paragraphs 85 and 86). It should be recalled that Article 5(2)(a) of Directive 2001/29 provides for the so-called ‘reproduction’ exception, which also provides for fair compensation.
27      Judgment of 12 November 2015, Hewlett-Packard Belgium (C‑572/13, EU:C:2015:750, paragraph 84).
28      The term ‘lending’ is defined in Article 2(1)(b) of Directive 2006/115 as ‘making [subject matter] available for use, for a limited period of time and not for direct or indirect economic or commercial advantage, when it is made through establishments which are accessible to the public’.
29      Concerning Article 5(1) of Council Directive 92/100/EEC of 19 November 1992 on rental right and lending right and on certain rights related to copyright in the field of intellectual property (OJ 1992 L 346, p. 61), repealed and replaced by Directive 2006/115.
30      Judgment of 30 June 2011, VEWA (C‑271/10, EU:C:2011:442; ‘the judgment in VEWA’, paragraph 29).
31      The judgment in VEWA, paragraph 23.
32      The judgment in VEWA, paragraph 33.
33      The judgment in VEWA, paragraph 36.
34      The judgment in VEWA, paragraphs 37 to 39.
35      The judgment in VEWA, paragraph 34.
36      See point
44 of the present Opinion.