Case C‑463/12

Copydan Båndkopi

v

Nokia Danmark A/S

(Request for a preliminary ruling from the Østre Landsret)

‛Reference for a preliminary ruling — Copyright and related rights — Directive 2001/29/EC — Articles 5(2)(b) and 6 — Reproduction right — Exception — Copying for private use — Reproductions made with the aid of mobile telephone memory cards — Fair compensation — Levy on reproduction media — Equal treatment — Reimbursement of the levy — Minimal prejudice’

Summary — Judgment of the Court (Fourth Chamber), 5 March 2015

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 — Levy introduced by a Member State for reproductions made with the aid of a device belonging to a third party — Lawfulness

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 — Compensation financed by a levy applied regardless of whether the source of reproduction is lawful — Not permissible

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 — Implementation of technological protection measures for protected works in digital reproduction devices — No effect on the level of 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 — Option for Member States to exclude any right for rightholders to authorise reproduction of their works for private use — Consequences

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 — Option for Member States to provide for an exemption from payment for reproductions which cause only minimum prejudice to rightholders — Within the discretion of the Member States to set the threshold for such prejudice — Limits — Respect for the principle of equal treatment

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 — Compensation financed by a levy on producers and importers of mobile telephone memory cards — No account taken of the status of final purchasers — Lawfulness — Conditions

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 — Compensation financed by a levy on digital reproduction media — The supply of components whose purpose is to store copies for private use not subject to the levy — Lawfulness — Condition — Respect for the principle of equal treatment

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 — Compensation financed by a levy on digital reproduction media — No distinction made as to whether the reproduction function is a main or ancillary function — Lawfulness — Condition — The medium’s capacity to make copies

Article 5(2)(b) of Directive 2001/29 on the harmonisation of certain aspects of copyright and related rights in the information society does not preclude national legislation which provides that fair compensation is to be paid, in accordance with the exception to the reproduction right for copies made for private use, in respect of multifunctional media such as mobile telephone memory cards, irrespective of whether the main function of such media is to make such copies, provided that one of the functions of the media, be it merely an ancillary function, enables the operator to use them for that purpose. However, the question whether the function is a main or an ancillary one and the importance of the actual use of the medium for that purpose are liable to affect the amount of fair compensation payable. In so far as the prejudice to the rightholder may be regarded as minimal, the making available of such a function need not give rise to an obligation to pay fair compensation. (see para. 29, operative part 1)

Article 5(2)(b) of Directive 2001/29 on the harmonisation of certain aspects of copyright and related rights in the information society does not preclude national legislation which makes the supply of media that may be used for copying for private use, such as mobile telephone memory cards, subject to the levy intended to finance fair compensation payable in accordance with the exception to the reproduction right for copies for private use, but does not make the supply of components whose main purpose is to store copies for private use, such as the internal memories of MP3 players, subject to that levy, provided that those different categories of media and components are not comparable or the different treatment they receive is justified, which is a matter for the national court to determine. (see para. 41, operative part 2)

Article 5(2)(b) of Directive 2001/29 on the harmonisation of certain aspects of copyright and related rights in the information society must be interpreted as not precluding national legislation which requires payment of the levy intended to finance fair compensation, in accordance with the exception to the reproduction right for copies for private use, by producers and importers who sell mobile telephone memory cards to business customers and are aware that those cards will be sold on by those customers but do not know whether the final purchasers of the cards will be individuals or business customers, on condition that: — the introduction of such a system is justified by practical difficulties; — the persons responsible for payment are exempt from the levy if they can establish that they have supplied the mobile telephone memory cards to persons other than natural persons for purposes clearly unrelated to copying for private use, it being understood that the exemption cannot be restricted to the supply of business customers registered with the organisation responsible for administering the levy; — the system provides for a right to reimbursement of that levy which is effective and does not make it excessively difficult to repay the levy and only the final purchaser of such a memory card may obtain reimbursement by submitting an appropriate application to that organisation. (see para. 55, operative part 3)

Article 5(2)(b) of Directive 2001/29 on the harmonisation of certain aspects of copyright and related rights in the information society, read in the light of recital 35 in the preamble to that directive, must be interpreted as permitting the Member States to provide, in certain cases covered by the exception to the reproduction right for copies for private use, for an exemption from the requirement under that exception to pay fair compensation, provided that the prejudice caused to rightholders in such cases is minimal. It is within the discretion of the Member States to set the threshold for such prejudice, it being understood that that threshold must, inter alia, be applied in a manner consistent with the principle of equal treatment. (see para. 67, operative part 4)

Directive 2001/29 on the harmonisation of certain aspects of copyright and related rights in the information society is to be interpreted as meaning that, where a Member State has decided, pursuant to Article 5(2) of that directive, to exclude, from the material scope of that provision, any right for rightholders to authorise reproduction of their works for private use, any authorisation given by a rightholder for the use of files containing his works can have no bearing on the fair compensation payable for reproductions made in accordance with Article 5(2)(b) of that directive with the aid of such files and cannot, of itself, give rise to an obligation on the part of the user of the files concerned to pay remuneration of any kind to the rightholder. (see para. 67, operative part 5)

The implementation of technological measures under Article 6 of Directive 2001/29 on the harmonisation of certain aspects of copyright and related rights in the information society for devices used to reproduce protected works, such as DVDs, CDs, MP3 players and computers, can have no effect on the requirement to pay fair compensation in accordance with the exception to the reproduction right in respect of reproductions made for private use by means of such devices. However, the implementation of such measures may have an effect on the actual level of such compensation. (see para. 73, operative part 6)

Directive 2001/29 on the harmonisation of certain aspects of copyright and related rights in the information society precludes national legislation which provides for fair compensation, in accordance with the exception to the reproduction right, in respect of reproductions made using unlawful sources, namely from protected works which are made available to the public without the rightholder’s consent. (see para. 79, operative part 7)

Directive 2001/29 on the harmonisation of certain aspects of copyright and related rights in the information society does not preclude national legislation which provides for fair compensation, in accordance with the exception to the reproduction right, in respect of reproductions of protected works made by a natural person by or with the aid of a device which belongs to a third party. (see para. 91, operative part 8)