62022CJ0260_RES
Case C‑260/22
Seven.One Entertainment Group GmbH
v
Corint Media GmbH
(Request for a preliminary ruling from the Landgericht Erfurt)
Judgment of the Court (First Chamber) of 23 November 2023
(Reference for a preliminary ruling – Harmonisation of certain aspects of copyright and related rights in the information society – Directive 2001/29/EC – Article 2(e) – Broadcasting organisations – Reproduction right of fixations of broadcasts – Article 5(2)(b) – Private copying exception – Fair compensation – Harm to broadcasting organisations – Equal treatment – National legislation excluding broadcasting organisations from the right to fair compensation)
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 – Broadcasting organisations – Included
(European Parliament and Council Directive 2001/29, Art. 2(e) and Art. 5(2)(b))
(see paragraphs 23-34)
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 – Member States’ option to provide for exemptions from payment for reproductions which cause only minimal harm to broadcasting organisations – Competence of the Member States to set the threshold of prejudice – Limits – Respect for the principle of equal treatment – A matter for the national court to ascertain
(Charter of Fundamental Rights of the European Union, Art. 20; European Parliament and Council Directive 2001/29, recital 35 and Art. 2(d) and (e) and Art. 5(2)(b))
(see paragraphs 38-50, 53, operative part)
Résumé
Corint Media is a collective management company which manages copyright and related rights of private television channels and radio stations on the German market in particular. It distributes the revenues from the blank media levy to broadcasting organisations and entered into an exclusive copyright management contract with Seven.One, a broadcasting organisation which produces and broadcasts, on German territory, a private, advertising-financed television channel.
Seven.One thus requested Corint Media to pay it compensation in respect of that levy. Corint Media could not, however, accede to that request, because national legislation (
1
) excludes broadcasting organisations from the right to fair compensation.
Seven.One referred the matter to the Landgericht Erfurt (Regional Court, Erfurt, Germany), which asked the Court of Justice whether broadcasting organisations, whose fixations of broadcasts are reproduced by natural persons for private use and for non-commercial ends, may be excluded from the right to fair compensation provided for in Article 5(2)(b) of Directive 2001/29. (
2
)
The referring court observed that a restriction of fair compensation to the detriment of certain rightholders is not provided for under that provision. Consequently, that court has doubts as to whether the aforementioned national legislation is compatible with Directive 2001/29 and the principle of equal treatment, enshrined in Article 20 of the Charter of Fundamental Rights of the European Union (‘the Charter’).
By the present judgment, the Court of Justice examines the question whether a Member State which has implemented the exception for private use to the exclusive reproduction right referred to in Article 5(2)(b) of Directive 2001/29 is justified in excluding in its entirety the category of broadcasting organisations from the right to fair compensation provided for in that article.
Findings of the Court
In the first place, the Court considers, first, that under Article 5(2)(b) of Directive 2001/29, Member States may provide for exceptions or limitations to the exclusive reproduction right, in the event 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 holders of that exclusive right receive fair compensation. Secondly, it is expressly apparent from Article 2(e) of that directive that broadcasting organisations, in the same way as the other rightholders referred to in that article, enjoy the exclusive right ‘to authorise or prohibit direct or indirect, temporary or permanent reproduction by any means and in any form, in whole or in part’ of fixations of their broadcasts, whether those broadcasts are transmitted by wire or over the air, including by cable or satellite.
Consequently, broadcasting organisations (
3
) must, in principle, in the Member States which have implemented the private copying exception, be granted the right to fair compensation, in the same way as the other rightholders.
That interpretation follows not only from a combined reading of Articles 2(e) and 5(2)(b) of Directive 2001/29, but also from the context of those provisions, from the objectives they pursue and from the origins of that directive.
In the second place, the Court finds, first, that the circumstance that some of those broadcasting organisations which also have the capacity of film producers already receive fair compensation in that respect, is irrelevant. The subject matter of the exclusive right of reproduction of those various rightholders is not identical. More specifically, the producers of the first fixations of films (
4
) have the exclusive right to authorise reproduction in respect of the original and copies of their films, and have their organisational and economic performance protected. On the other hand, broadcasting organisations have the exclusive reproduction right in respect of fixations of their broadcasts which they transmit, and are entitled to the protection of their technical performance embodied in the broadcast. It follows that the harm to those rightholders in respect of private copying is not the same either. Moreover, the capacity as film producers of broadcasting organisations is likely to be present to varying degrees, depending on whether those broadcasting organisations produce their broadcasts themselves, with their own material and human resources, transmit broadcasts produced on commission by contractual partners or transmit under licence broadcasts produced by third parties.
The Court notes, secondly, that the system on which fair compensation is based and the level of that compensation must be linked to the harm caused to the rightholders on account of private copying and be consistent with the principle of equal treatment, as enshrined in Article 20 of the Charter. In that respect, the Court states that the absence, or ‘minimal’ level, of harm suffered by the broadcasting organisations, on account of the private copying of fixations of their broadcasts, constitutes an objective and reasonable criterion which does not go beyond what is necessary to safeguard a fair balance of rights between the rightholders and the users of protected subject matter. However, it is for the national court, first, to satisfy itself, in the light of objective criteria, that broadcasting organisations, unlike the other categories of rightholders, suffer only harm which may be classified as ‘minimal’ in respect of non-authorised reproduction of fixations of their broadcasts. Secondly, it is for the national court to ascertain, also in the light of objective criteria, whether, in the category of broadcasting organisations, all of those organisations are in comparable situations, in particular with regard to the harm they suffer, justifying that all of those organisations be excluded from the right to fair compensation.
(
1
)	Paragraph 87(4) of the Gesetz über Urheberrecht und verwandte Schutzrechte – Urheberrechtsgesetz (Law on copyright and related rights) of 9 September 1965 (BGBl. 1965 I, p. 1273).
(
2
)	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 (OJ 2001 L 167, p. 10).
(
3
)	Broadcasting organisations are referred to in Article 2(e) of Directive 2001/29.
(
4
)	Article 2(d) of Directive 2001/29.