CELEX: 62008CC0467
Language: en
Date: 2010-05-11
Title: Opinion of Advocate General Trstenjak delivered on 11 May 2010. # Padawan SL v Sociedad General de Autores y Editores de España (SGAE). # Reference for a preliminary ruling: Audiencia Provincial de Barcelona - Spain. # Approximation of laws - Copyright and related rights - Directive 2001/29/EC - Reproduction right - Exceptions and limitations - Private copying exception - Definition of ‘fair compensation’ - Uniform interpretation - Implementation by the Member States - Criteria - Limits - Private copying levy applied to digital reproduction equipment, devices and media. # Case C-467/08.

OPINION OF ADVOCATE GENERAL
      TRSTENJAK
      delivered on 11 May 2010 1(1)
      
      Case C‑467/08
      Sociedad General de Autores y Editores (SGAE)
      v
      Padawan S. L.
      (Reference for a preliminary ruling from the Audiencia Provincial de Barcelona (Spain))
      (Directive 2001/29/EC – Copyright and related rights – Article 2 – Reproduction right – Article 5(2)(b) – Exceptions and limitations – Fair compensation – Scope – Levy system in respect of digital reproduction equipment, devices and media)
      I –  Introduction
      1.        The invention of printing by Johannes Gutenberg in approximately 1450 constituted a culturally and historically significant
         turning point in the history of Europe and the world. This event, which involved the introduction of a new method of reproduction
         and at first sight only had technical relevance, was able to bring about a media revolution which led to the notable flourishing
         of European intellectual life. It facilitated access to information and education, namely by means of the exact reproduction
         of knowledge to an extent never previously known and within the means of more and more citizens. This aided mass dissemination
         and a lively exchange of ideas, which paved the way to the cultural age of the Renaissance and later to the Age of Enlightenment.
         At the same time, authorship gained significance, since the question of who had written what and in what factual and temporal
         context became more and more important. From this, arose the necessity to effectively protect the right of authors in their
         works and the rights of printers and publishers involved in producing printed works. In this way, the basic idea of copyright
         law came into being. In retrospect, the problems linked to the control of reproductions of literary and artistic works turn
         out to be just as old as the technical methods of producing those reproductions themselves. (2) As the present case shows, these problems have gained in topicality, especially since technological development up to the
         digital age has given rise to new methods and devices which make it possible for every person to save data digitally, to amend
         it and to reproduce it at will. The legislature and the judge have the sensitive task of developing appropriate solutions
         to these new challenges which should take into account the interests of the author and the user to the same extent.
      
      2.        In the present reference for a preliminary ruling under Article 234 EC, (3) the Audiencia Provincial de Barcelona (Provincial Court, Barcelona; ‘the referring court’) submits a series of questions
         to the Court concerning the interpretation of the concept of ‘fair compensation’, mentioned in 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, (4) to which, pursuant to this exception to the rule, the rightholders of any copyright are entitled in the event of the reproduction
         of a work or other subject-matter for private use.
      
      3.        These questions arise in the context of proceedings in which the Sociedad General de Autores y Editores de España (SGAE; ‘the
         claimant in the main proceedings’), a Spanish intellectual property rights management society, is bringing a claim against
         the company Padawan S. L. (‘the defendant in the main proceedings’) for payment of flat-rate compensation for private copying
         in respect of storage media marketed by it during a precisely defined period. 
      
      II –  Legislative framework
      A –    European Union law
      4.        Recital 10 in the preamble to Directive 2001/29 states:
      
      ‘If authors or performers are to continue their creative and artistic work, they have to receive an appropriate reward for
         the use of their work, as must producers in order to be able to finance this work. The investment required to produce products
         such as phonograms, films or multimedia products, and services such as “on‑demand” services, is considerable. Adequate legal
         protection of intellectual property rights is necessary in order to guarantee the availability of such a reward and provide
         the opportunity for satisfactory returns on this investment.’
      
      5.        Recital 31 is worded as follows:
      
      ‘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. The existing exceptions and limitations
         to the rights as set out by the Member States have to be reassessed in the light of the new electronic environment. Existing
         differences in the exceptions and limitations to certain restricted acts have direct negative effects on the functioning of
         the internal market of copyright and related rights. Such differences could well become more pronounced in view of the further
         development of transborder exploitation of works and cross-border activities. In order to ensure the proper functioning of
         the internal market, such exceptions and limitations should be defined more harmoniously. The degree of their harmonisation
         should be based on their impact on the smooth functioning of the internal market.’
      
      6.        Recital 32 contains the following statement:
      
      ‘This Directive provides for an exhaustive enumeration of exceptions and limitations to the reproduction right and the right
         of communication to the public. Some exceptions or limitations only apply to the reproduction right, where appropriate. This
         list takes due account of the different legal traditions in Member States, while, at the same time, aiming to ensure a functioning
         internal market. Member States should arrive at a coherent application of these exceptions and limitations, which will be
         assessed when reviewing implementing legislation in the future.’
      
      7.        Recital 35 is worded as follows:
      
      ‘In 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. The level of fair compensation should take full account of the degree of use of technological
         protection measures referred to in this Directive. In certain situations where the prejudice to the rightholder would be minimal,
         no obligation for payment may arise.’
      
      8.        Recital 38 states inter alia:
      
      ‘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 audiovisual material for private use, accompanied by fair compensation. This may include
         the introduction or continuation of remuneration schemes to compensate for the prejudice to rightholders.’
      
      9.        Article 2 of Directive 2001/29 states as follows:
      
      ‘Reproduction right
      Member States shall provide for 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:
      
      (a)      for authors, of their works;
      (b)      for performers, of fixations of their performances;
      (c)      for phonogram producers, of their phonograms;
      (d)      for the producers of the first fixations of films, in respect of the original and copies of their films;
      (e)      for broadcasting organisations, of fixations of their broadcasts, whether those broadcasts are transmitted by wire or over
         the air, including by cable or satellite.’
      
      10.      Article 5(2)(b) of the directive provides as follows:
      
      ‘Exceptions and limitations 
      …
      2.      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.’
      
      B –    National law
      11.      According to the information provided by the referring court, Article 2 of Directive 2001/29 was implemented under national
         law by Article 17 of the consolidated version of the Law on Intellectual Property (Texto Refundido de la Ley de Propiedad
         Intelectual; ‘TRLPI’) which was approved by the Real Decreto Legislativo (Royal Legislative Decree) 1/1996 of 12 April 1996,
         which provides that ‘[t]he author has exclusive rights of exploitation of his works regardless of their form and, in particular,
         reproduction rights …which cannot be exercised without his permission except in circumstances laid down in this Law’, and
         by the following articles which extend that reproduction right to other holders of intellectual property rights. 
      
      12.      Article 18 of the TRLPI specifies that reproduction means: ‘the fixation of the work on a medium which enables communication
         of the work and copying of the whole or part of the work’.
      
      13.      In accordance with Article 5(2)(b) of Directive 2001/29, Article 31(1)(2) of the TRLPI provides that works which have already
         been circulated may be reproduced without the author’s permission for ‘private use by the copier without prejudice to Articles
         25 and 99(a) of this Law, provided that usage of the copy is not collective or for profit’.
      
      14.      The version of Article 25 of the TRLPI which preceded Amending Law No 23/2006 of 7 July 2006 (5) lays down highly detailed rules governing the compensation to which the holders of intellectual property rights are entitled
         in respect of reproductions made exclusively for private use, ‘by means of non‑typographical devices or technical instruments,
         of works circulated in the form of books or publications deemed by regulation to be equivalent, and phonograms, videograms
         and other sound, visual or audiovisual media’. 
      
      15.      That compensation, which must be fair and paid only once, consists of a levy applicable not only to equipment and devices
         for reproducing books but also to equipment and devices for reproducing phonograms and videograms, and to media for sound,
         visual and audiovisual reproduction (Article 25(5) of the TRLPI). The levy must be imposed on manufacturers and importers
         of the aforementioned equipment and media and on ‘wholesalers and retailers as subsequent purchasers of the products concerned’
         (Article 25(4)(a) of the TRLPI), and it is to be paid to intellectual property rights management societies (Article 25(7)
         of the TRLPI).
      
      16.      Amending Law No 23/2006 amended Article 25 of the TRLPI so as to extend the application of that levy specifically to digital
         reproduction equipment, devices and media. The amount of compensation must be approved jointly by the Ministry of Culture
         and the Ministry of Industry, Tourism and Trade in accordance with the following procedure: first of all, rights management
         societies and the industry associations, representing in the main persons liable for payment, are granted a period of four
         months to determine which equipment, devices and media attract fair compensation for private copying, together with the amount
         payable in each case; second, three months after notification of the agreement, or after expiry of the four-month period if
         no agreement has been reached, the Ministry of Culture and the Ministry of Industry, Tourism and Trade must approve the list
         of equipment, devices and media which attract the ‘levy’ and the amount thereof (Article 25(6) of the TRLPI). 
      
      17.      In that connection, the law lays down a number of criteria to be taken into account: (a) the harm actually caused to the holders
         of the intellectual property rights as a result of the reproductions classified as private copying; (b) the degree to which
         the equipment, devices and media are used for the purpose of such private copying; (c) the storage capacity of the equipment,
         devices and media used for private copying; (d) the quality of the reproductions; (e) the availability, level of application
         and effectiveness of the technological measures; (f) how long the reproductions can be preserved; and (g) the amount of compensation
         applicable to the equipment, devices and media concerned should be economically proportionate to the final retail price of
         those products (Article 25(6) of the TRLPI).
      
      18.      In order to implement the abovementioned provisions, Orden Ministerial (Ministerial Order) No 1743/2008 of 18 June 2008 (6) laid down which digital reproduction equipment, devices and media must attract payment of the private copying compensation,
         and the amount of compensation payable in respect of each product by every person liable.
      
      III –  Facts of the case, main proceedings and questions referred
      19.      As mentioned in my introductory remarks, the claimant in the main proceedings is a Spanish intellectual property rights management
         society. The defendant in the main proceedings markets electronic storage media, inter alia in the form of CD‑Rs, CD‑RWs,
         DVD‑Rs and MP3 players. The claimant in the main proceedings is bringing an action against the defendant in the main proceedings
         for payment of a lump sum in compensation for private copying in respect of the storage media marketed by it between September
         2002 and September 2004. 
      
      20.      At first instance, the claim was upheld in full and the defendant in the main proceedings was ordered to pay EUR 16 759.25
         plus interest. The defendant in the main proceedings appealed against that judgment.
      
      21.      In its order for reference, the referring court, which must decide the appeal, expresses uncertainty with regard to the correct
         interpretation of the concept of ‘fair compensation’ in Article 5(2)(b) of Directive 2001/29. It has doubts as to whether
         the provision which is applicable in the Kingdom of Spain, pursuant to which the private copying levy is charged indiscriminately
         on digital reproduction equipment, devices and media, can be regarded as compatible with the directive. It is of the opinion
         that the replies to its questions will affect the resolution of the main proceedings, because they will determine whether
         the claimant in the main proceedings is entitled to claim fair compensation for private copying in respect of all the CD-Rs,
         CD-RWs, DVD-Rs and MP3 players marketed by the defendant in the main proceedings in the abovementioned period, or only in
         respect of those digital reproduction devices and media which it may be presumed have been used for private copying.
      
      22.      The referring court has accordingly stayed the proceedings and referred the following questions to the Court for a preliminary
         ruling:
      
      ‘(1)      Does the concept of “fair compensationˮ in Article 5(2)(b) of Directive 2001/29 entail harmonisation, irrespective of the
         Member States’ right to choose the system of collection which they deem appropriate for the purposes of giving effect to the
         right to fair compensation of intellectual property rightholders affected by the adoption of the private copying exception
         or limitation?
      
      (2)      Regardless of the system used by each Member State to calculate fair compensation, must that system ensure a fair balance
         between the persons affected, the intellectual property rightholders affected by the private copying exception, to whom the
         compensation is owed, on the one hand, and the persons directly or indirectly liable to pay the compensation, on the other,
         and is that balance determined by the reason for the fair compensation, which is to mitigate the harm arising from the private
         copying exception?
      
      (3)      Where a Member State opts for a system of charging or levying in respect of digital reproduction equipment, devices and media,
         in accordance with the aim pursued by Article 5(2)(b) of Directive 2001/29 and the context of that provision, must that charge
         (the fair compensation for private copying) necessarily be linked to the presumed use of those equipment and media for making
         reproductions covered by the private copying exception, with the result that the application of the charge would be justified
         where it may be presumed that the digital reproduction equipment, devices and media are to be used for private copying, but
         not otherwise? 
      
      (4)      If a Member State adopts a private copying “levyˮ system, is the indiscriminate application of that “levyˮ to undertakings
         and professional persons who clearly purchase digital reproduction devices and media for purposes other than private copying
         compatible with the concept of “fair compensationˮ?
      
      (5)      Might the system adopted by the Spanish State of applying the private copying levy indiscriminately to all digital reproduction
         equipment, devices and media infringe Directive 2001/29, in so far as there is insufficient correlation between the fair compensation
         and the limitation of the private copying right justifying it, because to a large extent it is applied to different situations
         in which the limitation of rights justifying the compensation does not exist?’
      
      IV –  Procedure before the Court
      23.      The order for reference dated 15 September 2008 was received at the Registry of the Court on 31 October 2008.
      
      24.      Written observations were submitted by the parties to the main proceedings, the Governments of the Kingdom of Spain, the Federal
         Republic of Germany, the United Kingdom of Great Britain and Northern Ireland, the Hellenic Republic, the French Republic,
         the Republic of Finland, the Portuguese Republic, the Centro Español de Derechos Reprográficos (CEDRO), the Entidad de Gestión
         de Derechos de los Productores Audiovisuales (EGEDA), the Asociación de Artistas Intérpretes o Ejecutantes – Sociedad de Gestión
         de España (AIE), the Asociación de Gestión de Derechos Intelectuales (AGEDI) and the Commission within the period stated in
         Article 23 of the Statute of the Court.
      
      25.      At the hearing on 4 March 2010, the representatives of the parties in the main proceedings, of EGEDA, AIE, AGEDI and CEDRO,
         the representatives of the Governments of the Kingdom of Spain, the Federal Republic of Germany and the Hellenic Republic,
         and the representatives of the Commission presented their observations.
      
      V –  Main submissions of the parties
      A –    Admissibility of the questions referred
      26.      The Spanish Government and CEDRO propose that the Court should declare the reference inadmissible, since in their opinion the referring court has made a reference
         for a preliminary ruling in the context of proceedings to which the provision which was replaced by the Spanish implementing
         legislation for Directive 2001/29 applies. They submit that the provisions of Article 25 of the TRLPI which applied before
         Amending Law No 23/2006 came into force are exclusively applicable. A ruling on the interpretation of the concept of ‘fair
         compensation’ in Directive 2001/29 is therefore unnecessary in order to decide the main proceedings. 
      
      27.      The claimant in the main proceedings also proposes that the reference should be declared inadmissible, but for a different reason. It considers it to be obvious
         that compensation for private copying was merely the subject of minimal harmonisation. Directive 2001/29 lays down neither
         the methods, pursuant to which fair compensation for private copying should be calculated, nor the equipment, devices and
         media, the sale of which gives rise to a claim for fair compensation, nor the specific circumstances in which payment should
         not be exacted.
      
      B –    The first question referred
      28.      The Commission, the United Kingdom Government, the German and the Finnish Governments and EGEDA and AIE take the view that the concept of ‘fair compensation’ in Article 5(2)(b) of Directive 2001/29 requires a uniform interpretation
         in all Member States and must be applied by every Member State within the limits laid down by Community law and in particular
         the abovementioned directive.
      
      29.      On the other hand, the Spanish, French and in part also the Greek Governments, the claimant in the main proceedings, CEDRO and AGEDI take the view that the intention of the Community legislature was clearly to limit the harmonisation function of a concept,
         namely that of ‘fair compensation’, for the reason that, first, it does not necessarily have to be incorporated into the national
         legislation of the Member States and second, it does not contain the essential criteria for the parties to be able to determine
         the subject-matter and the content of the legal relationship, which is necessary in order to be able to infer a harmonised
         concept at a European level. It follows that there is no association between the concept of ‘fair compensation’ in Article 5(2)(b)
         of Directive 2001/29 and any harmonisation at Community level.
      
      C –    The second question referred
      30.      The United Kingdom Government and the Greek Government, the defendant in the main proceedings and EGEDA and AGEDI assert that each Member State’s system of calculating the amount of the ‘fair compensation’ must make sure that a balance
         exists between the authors and the users, as well as between the persons who are directly or indirectly affected by this levy,
         by taking into account the harm or prejudice if any, suffered by the author, as a result of permitting private copying. The
         French and the German Governments submit in particular that the calculation of the ‘fair compensation’ should allow authors to receive an appropriate payment
         for the use of their works.
      
      31.      On the other hand, the Spanish Government and CEDRO assert that no requirement of balance can be inferred from the wording of Directive 2001/29. They also state that the objective
         of that compensation cannot be only to compensate for a loss, especially since that element could merely be a ‘valuable criterion’,
         which does not mean that it is either the only criterion to be taken into account or even the decisive one for determining
         the financial compensation. However, the German Government takes the view that Article 5(2)(b) of Directive 2001/29 does not preclude a Member State’s system of appropriate reward,
         based on a lump sum related to the presumed use of the devices normally used for private copying, provided that those methods
         were not contrary to the principle of proportionality.
      
      32.      The Commission is of the opinion that in so far as Directive 2001/29 does not contain any provisions on the financing of the fair compensation
         provided for in Article 5(2)(b), it is left to the Member States to determine both the means of financing that compensation
         and, in the event that they finance it by means of a levy, the detailed arrangements for that levy, nevertheless always within
         the limits laid down by Community law, above all the fundamental rights and the general principles of law.
      
      D –    The third question referred
      33.      The United KingdomGovernment and the French Government, the defendant in the main proceedings and AGEDI are of the opinion that if a Member State decides to introduce a levy system applying to equipment, devices and media, pursuant
         to the objective laid down in Article 5(2)(b) of giving the authors compensation for the harm or prejudice they suffer, that
         levy must have a connection to the presumed use of those digital reproduction equipment and devices.
      
      34.      On the other hand, the Spanish, Finnish and Greek Governments, and EGEDA and CEDRO take the view that the Member States were granted discretion, allowing them to introduce different compensation systems,
         which is actually what they have done to date. They submit that it was therefore permissible, in the context of that diversity,
         to introduce such systems based on the objective capability of equipment or a device to make copies for private use. They
         say that it is also sensible to proceed on the basis of the premiss that the act of manufacturing or importing the device
         already provides the means of causing authors financial loss, regardless of the possibility of adapting that criterion, as
         was already the case for the Spanish legislation in the light of the specific circumstances and other criteria.
      
      35.      The Commission and AIE point out that Directive 2001/29 leaves the decision to the Member States as to who should contribute to financing the ‘fair
         compensation’ and in what form. The directive does not preclude those who profit from the exceptions and limitations to the
         copyright of authors, artists, interpreters, producers or media companies from being obliged to pay a contributory payment
         within the limits set by Community law.
      
      E –    The fourth question referred
      36.      The United Kingdom Government, the French Government and the defendant in the main proceedings take the view that the indiscriminate application of the levy to undertakings and professional persons who clearly purchased
         digital reproduction devices and media for purposes other than private copying is not compatible with the concept of ‘fair
         compensation’. In particular, in the opinion of the Finnish Government, if the Member State has selected a levy system in relation to digital reproduction equipment, devices and media, it is justified
         to abstain from a levy for those devices which would be used for purely professional purposes.
      
      37.      On the other hand, the Spanish and Greek Governments, EGEDA, CEDRO and AGEDI are of the view that even if it is correct that the criterion of the objective suitability of the equipment or the device
         could also be adjusted on the basis of the subjective disposition of the purchaser (in so far as it is guaranteed that he
         will not use it for private copying), it is no less correct that there could be no reason for elevating that subjective element
         to the rank of a decisive criterion, especially since the final purpose of the devices cannot easily be determined. They assert
         that Directive 2001/29 does not oblige the Member States to exempt particular categories of purchasers from the obligation
         to pay appropriate compensation. The Greek Government takes the view that equipment and devices used for professional purposes should not be exempted from the compensation payment,
         since it is not possible to verify the actual use that is made of these devices.
      
      38.      The Commission and AIE point out that Directive 2001/29 does not prevent a Member State, which has introduced a system of levying in respect of
         equipment, devices and media linked with the digital reproduction of protected works for private use, from applying this system
         regardless of whether the purchaser is a private individual, a business or a professional person.
      
      F –    The fifth question referred
      39.      The Spanish and the French Governments and SGAE, EGEDA, CEDRO and AGEDI are of the view that the legislation which the Spanish legislature has chosen is compatible with Directive 2001/29. Although
         the Commission does not expressly give its opinion on this question referred, it also appears to proceed on the basis of the Spanish legislation
         being compatible with Directive 2001/29.
      
      40.      On the other hand, the defendant in the main proceedings is of the opinion that the Spanish legislation in relation to private copying is contrary to Article 5(2)(b) of Directive
         2001/29 and the principles of proportionality and non‑discrimination in Community law in so far as it applies indiscriminately
         to all digital reproduction equipment, devices and media, regardless of whether they are actually used for private copying
         (and not for commercial purposes) of works and other subject‑matter.
      
      VI –  Legal assessment
      A –    Introductory observations
      41.      Directive 2001/29, which entered into force on 23 June 2001 for the purposes of implementing the WIPO Copyright Treaty (7) of 1996 at Community level, together with six further directives, forms the basis of the copyright law of the European Union. (8) It is the Community legislature’s reaction to technological development in information technology, which on the one hand
         opens up new forms of output and exploitation for rightholders, (9) but on the other hand presents new challenges to the protection of intellectual property in the light of the risk of piracy,
         counterfeiting and the unauthorised reproduction of works and other subject‑matter. (10) At the same time, the directive is intended to make concessions to the public’s justified interest in access to such subject-matter.
         Directive 2001/29 is consequently informed by the Community legislature’s efforts to reconcile the interests of the rightholder
         and of the public. (11) As demonstrated by its recital 2, the directive forms part of a series of legislative measures, which the European Council
         adopted at its meeting in Corfu on 24 and 25 June 1994, which were aimed at creating a general and flexible legal framework
         at Community level in order to foster the development of the information society in Europe.
      
      42.      As demonstrated by its recital 1, the directive, which was adopted on the basis of Articles 95 EC, 47(2) EC and 55 EC, constitutes
         a contribution to ensuring that competition in the internal market is not distorted. According to its recital 6, harmonisation
         at Community level is intended to respond to the risk of refragmentation of the internal market as a consequence of differences
         in protection. Recital 4 makes clear that the legislative objective of Directive 2001/29 consists in creating a harmonised
         legal framework on copyright and related rights, which, through increased legal certainty and while providing for a high level
         of protection of intellectual property, will foster substantial investment in creativity and innovation, including network
         infrastructure, and should lead in turn to growth and increased competitiveness of European industry. 
      
      43.      In terms of regulatory policy, Directive 2001/29 represents a compromise, (12) which, despite the declared objective of harmonisation, sufficiently takes into account the differing legal traditions and
         views in the Member States of the European Union – including in particular the common law concept of copyright and the continental
         European concept of copyright protection (13) –, for instance by providing for numerous exceptions (14) and allows the Member States considerable flexibility in the transposition of the directive. (15)
      
      44.      That also applies to the rule in Article 5(2)(b) of the directive, which permits Member States to provide for exceptions or
         limitations in their legal systems with regard to the reproduction of protected works and/or performances for private use;
         in those circumstances, the Member States are however expressly obliged to ensure that there is ‘fair compensation’ for the
         rightholder. The decision as to whether such an exception or limitation should be introduced is optional in character, as
         indicated by the wording of that provision (‘may’), which means that it is left to the discretion of the Member States. (16) However, the question which is at the centre of the present case, as to the details of how such a compensation system should
         be organised, cannot readily be answered on the basis of the wording of that provision of the directive. That question requires
         a thorough interpretation of the directive to be undertaken, taking into account all the interpretative methods available
         to the Court.
      
      45.      On the basis of a careful assessment of the questions referred, the reference for a preliminary ruling is essentially aimed
         at learning from the Court where the Community law limits to the Member States’ margin of discretion for implementation lie
         and what criteria they must take into account for the purposes of organising this ‘fair compensation’ in the light of the
         requirements laid down by the Community legislature. In the interests of clarity, for the purposes of the legal assessment
         I will follow the order of the questions used by the referring court. Due to the fact that they are closely related in terms
         of subject-matter, the third to fifth questions referred will be dealt with together.
      
      B –    Admissibility of the reference
      1.      Admissibility of the subject-matter for interpretation and relevance of the reference
      46.      Prior to examining the questions referred, it is still necessary to consider the plea of inadmissibility of the reference
         raised by the Spanish Government, CEDRO and the claimant in the main proceedings.
      
      47.      The Spanish Government and CEDRO essentially assert that the questions referred are irrelevant to the decision in the main
         proceedings, since it is not the Spanish provisions implementing Directive 2001/29 which are applicable, but the provisions
         which they replaced. The claimant in the main proceedings, on the other hand, refers to the fact that Directive 2001/29 provides
         for a minimum level of harmonisation, so that the question of how fair compensation for making reproductions for private use
         must be calculated is not a question of Community law, but one of national law, with the consequence that it depends entirely
         on the interpretation of the applicable Member State’s provisions.
      
      48.      It must be noted that the plea of inadmissibility raised by the abovementioned parties – despite clear differences in the
         arguments – is essentially based on the fact that the decision in the main proceedings does not depend upon an interpretation
         of Community law, but, on the contrary, on an interpretation of national law. The parties accordingly call into question,
         from a legal point of view, on the one hand, the existence of an admissible subject-matter for interpretation and, on the
         other hand, the relevance of the reference. Consequently, they also submit that the Court has no power to interpret provisions
         of national law. 
      
      49.      Whilst the latter is correct and also reflects the established case-law the Court, (17) it is also apparent from the case-law of the Court that the Court is not permitted to evaluate the national judges’ grounds
         for referring a particular question. (18) Thus the Court has indicated on a number of occasions that, for the purposes of the cooperation between the Court and the
         national courts under Article 234 EC, it is solely for the national court before which the dispute has been brought, and which
         must bear the responsibility for the subsequent judicial decision, to determine, in the light of the special features of the
         case it is called upon to resolve, both the need for a preliminary ruling in order to enable it to deliver judgment and the
         relevance of the questions which it submits to the Court. (19)
      
      50.      Where the questions submitted by the national court concern the interpretation of a provision of Community law, the Court
         is, in principle, bound to give a ruling, (20) unless in reality it is obviously being prevailed upon to decide on a hypothetical case or to deliver advisory opinions on
         general or hypothetical questions, the interpretation of Community law sought bears no relation to the actual facts of the
         main action or its purpose or where the Court does not have before it the factual or legal material necessary to give a useful
         answer to the questions submitted to it. (21)
      
      51.      As far as the present reference for a preliminary ruling is concerned, first of all it is clear that an interpretation of
         Article 5(2)(b) of Directive 2001/29 is sought from the Court. There is no doubt that that constitutes an admissible subject‑matter
         for interpretation under Article 234(1)(b) EC. As far as the question of relevance is concerned, no support can be found for
         the theory that the questions referred do not bear any relation to the main proceedings. On the contrary, the opposite appears
         to be the case, especially since in its order for reference (22) the referring court points out several times that a reply to the questions referred will affect the resolution of the proceedings
         giving rise to the reference for a preliminary ruling, because it will determine to what extent the claimant in the main proceedings
         is entitled to claim fair compensation. According to the referring court’s comments, that depends on whether the specific
         formulation of the legislation applicable in Spain is at all compatible with the Community law concept of ‘fair compensation’,
         or in other words whether it meets the requirements for ‘fair compensation’ within the meaning of Article 5(2)(b) of Directive
         2001/29.
      
      52.      Against that background, the issue of precisely which national provisions are applicable in the main proceedings is basically
         irrelevant for the purposes of assessing the admissibility of the present reference for a preliminary ruling. The assessment
         of that question falls within the competence of the national judge who has jurisdiction to determine the interpretation and
         application of national law in relation to the main proceedings. 
      
      53.      Accordingly, the reference for a preliminary ruling is admissible.
      
      2.      Argument as to the subsequent introduction of the concept of ‘fair compensation’ into Spanish copyright law
      54.      For the sake of completeness, I would like, in this context, to consider the submission of the Spanish Government that an
         interpretation of Directive 2001/29 is not necessary in order to decide the proceedings, since the concept of ‘fair compensation’
         (‘compensación equitativa’) within the meaning of Article 5(2)(b) of Directive 2001/29 was inserted into Article 25 of the
         TRLPI only as a replacement for the previously used concept of ‘fair remuneration’ (‘remuneración equitativa’) by Amending
         Law No 23/2006 of 7 July 2006.
      
      55.      First of all, it must be noted that the Spanish Government has neither explained nor proven to what extent the concept previously
         used in the Spanish legislation differs, in normative content, from the concept of ‘fair compensation’. In particular, it
         remains unclear whether the Spanish legislature’s intention in making that amendment was merely to make it semantically more
         precise in order to adapt the terminology of its national copyright law to that of Directive 2001/29. The latter appears more
         probable on the basis of the minor changes in the wording. (23)
      
      56.      It should also be remembered that proceedings under Article 234 EC are based on cooperation between the Court and the national
         courts, in the context of which it is not for the Court to rule on the interpretation of national provisions or to decide
         whether the referring court’s interpretation thereof is correct. (24) From a procedural point of view, the Court must essentially take account, under the division of jurisdiction between the
         Community Courts and the national courts, of the factual and legislative context, as described in the order for reference,
         in which the questions put to it are set. (25) Since that aspect has not been raised by the referring court, what follows proceeds on the basis of its lack of relevance
         to the present reference for a preliminary ruling.
      
      57.      However, in view of the necessity to give the national judge a useful answer to the questions referred, (26) I consider it necessary, as a precaution, to point out that in so far as it should depend, for the purposes of the main proceedings,
         on precisely determining the temporal application of national law – not least because of the adaptations to the requirements
         of the directive which have been made to Spanish substantive law – it should be taken into consideration that the facts which
         gave rise to these proceedings occurred in a period between September 2002 and September 2004 and consequently, for the most
         part, at a time when, first, Directive 2001/29 was already in force and by which, second, the Member States should have adopted
         the necessary implementing provisions. It is apparent from Article 13(1) of Directive 2001/29 that the Member States were
         obliged to adopt the necessary legal and administrative provisions in order to comply with this directive prior to 22 December
         2002.
      
      58.      If the concept of ‘fair compensation’ applied only to Spanish copyright law later as a result of Amending Law No 23/2006 of
         7 July 2006, and was not legally identical to the concept which it replaced, then it should be pointed out that, from the
         expiry of the period for implementing the directive, the Spanish courts were obliged to give an interpretation which was in
         conformity with the directive. According to the Court’s case-law, once the period for implementing the directive has expired,
         the national courts owe a general obligation to interpret domestic law in conformity with the directive. (27) The obligation to give an interpretation in conformity with the directive means that domestic law must be interpreted, so
         far as possible, in the light of the wording and purpose of the relevant directive, in order to achieve the objective pursued
         by the directive, by selecting an interpretation of the national legal provisions which best corresponds to that objective
         and consequently reaching a solution which is compatible with the provisions of that directive. (28)
      
      C –    The first question referred
      59.      By the first question referred, the referring court seeks information on whether the concept of ‘fair compensation’ in Article 5(2)(b)
         of Directive 2001/29 entails harmonisation and whether it is a Community concept which must be given an autonomous Community
         interpretation.
      
      60.      Directive 2001/29 does not itself contain any legal definition of that concept. Therefore the question arises as to whether
         that fact precludes it from being classified as a Community law concept. 
      
      61.      First of all, the case-law of the Court, (29) which has in the meantime doubtless become established, may be cited in favour of such a classification: uniform application
         of Community law and the principle of equality require that the terms of a provision of Community law which makes no express
         reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an autonomous
         and uniform interpretation throughout the Community; that interpretation must take into account the context of the provision
         and the purpose of the legislation in question. However, if the Community legislature makes an implied reference to the national
         usage in a Community act, it is not for the Court to give a uniform Community definition of the term used. (30)
      
      62.      Where there is an implied reference to national usage or even legislation in order to explain the concept, a Community law
         definition of the concept is accordingly dispensed with. In those circumstances, the national law has an interpretative effect
         within Community law. References of that nature are, in particular, indispensable in those situations where the Community,
         by reason of non-exercise or even the lack of legislative competence, has not created uniform terminology in a specific area
         of Community law. They arise as a consequence, therefore, of the principles of limited legal competence and subsidiarity which,
         in accordance with Article 5 EC, are inherent in Community law. (31)
      
      63.      Since Directive 2001/29 does not contain any express reference to the law of the Member States, in principle that would point
         in favour of classification as a Community law concept.
      
      64.      The abovementioned case-law must be understood to mean that the Court clearly proceeds on the basis of a presumption in favour
         of an autonomous interpretation, due to the necessity for uniform application and for equal treatment; however, that presumption
         may be rebutted in certain circumstances (32) if a uniform conceptual scheme is not possible (33) or if it requires only partial harmonisation. (34)
      
      65.      There are no such circumstances in the present case, since the content of that concept may be determined sufficiently precisely
         by means of a systematic and teleological consideration of individual provisions of the directive, taking into account the
         recitals. According to the Court’s case-law, in interpreting a provision of Community law it is necessary to consider not
         only its wording but also the context in which it occurs and the objectives of the rules of which it forms part. (35)
      
      66.      Thus, that concept in Article 5(2)(b) of the directive is used to describe the content of a ‘condition’. As stated by way
         of introduction, the Member States must fulfil that condition if they provide for exceptions or limitations to the reproduction
         right provided for in Article 2. In addition, recital 35 explains the objective of such fair compensation: it is a question
         of compensating the rightholder adequately for the use made of his protected works or other subject‑matter. However, individual
         Community law requirements which the Member States must fulfil in relation to the form of such compensation, which will be
         discussed further in this Opinion, may also be inferred from other recitals, including recitals 31 and 32. Therefore, as the
         United Kingdom Government correctly observes, (36) Directive 2001/29 regulates the issue to the extent that it allows those applying the law to at least determine the contours
         of such fair compensation.
      
      67.      Last but not least, the objective of Directive 2001/29 itself, of harmonising certain aspects of copyright law and related
         rights in the information society and in this way ensuring that competition in the internal market is not distorted as a result
         of Member States’ different legislation, points towards classification as a Community law concept. Approximation of laws necessarily
         requires the development of autonomous Community law concepts, including uniform terminology, if it intends to achieve its
         legislative objective. (37) It must be possible for a directive to have its own conceptual scheme regardless of whether Member States are entitled to
         a certain amount of discretion with regard to implementation. The Community legislature’s concern to achieve an interpretation
         of Directive 2001/29 which is as uniform as possible is reflected in recital 32, in which Member States are called upon to
         arrive at a coherent application of those exceptions and limitations in relation to the reproduction right. Divergent interpretations
         of the central concept of ‘fair compensation’ in Article 5(2)(b) of Directive 2001/29 would plainly defeat this objective.
      
      68.      The above views are confirmed in SENA, (38) in which the Court was called upon to interpret the concept of ‘equitable remuneration’ within the meaning of Article 8(2)
         of 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. (39) In that case, the Court referred first of all to the case-law cited above in relation to the autonomous interpretation of
         Community concepts, (40) in order to then point out the fact that Directive 92/100 did not provide any definition of that concept. (41) It clearly proceeded on the basis of the presumption that the Community legislature deliberately refrained from laying down
         a detailed and universally applicable method for calculating the level of such remuneration. (42) Consequently, it expressly acknowledged the Member States’ right to lay down specific methods for determining what constitutes
         such ‘equitable remuneration’, by determining ‘the most relevant criteria for ensuring, within the limits imposed by Community
         law, and particularly Directive 92/100, adherence to that Community concept’ (43) and restricted itself to calling upon the Member States to ensure the greatest possible adherence throughout the territory
         of the Community to the concept of ‘equitable remuneration’ in the light of the objectives of Directive 92/100, as specified
         in particular in the preamble thereto. (44) At the same time, it must be emphasised that the fact that that concept required more detailed expression to be given to
         it by means of criteria to be laid down by national law did not prevent the Court from stating that the concept of ‘equitable
         remuneration’ in Article 8(2) of Directive 92/100 had to be interpreted uniformly in all the Member States and applied by
         each Member State. (45) Consequently, in conclusion, even in the special circumstances of that case, the Court was able to answer in the affirmative
         that it was a concept of Community law necessitating an autonomous Community interpretation. 
      
      69.      It appears conceivable to me that those principles could be applied to the case at issue in the main proceedings, especially
         since the present case is also concerned with the interpretation of a legal concept in the field of Community copyright law,
         which as a result of the regulatory approach adopted by the Community legislature is similarly vague and in need of more detailed
         expression.
      
      70.      Finally, a further argument may be advanced in favour of classification as a Community law concept, which is based on a historical
         interpretation of Directive 2001/29. It may be inferred from the drafting history of that directive that the concept of ‘fair
         compensation’ in Article 5(2)(b) was intended to be a ‘new concept’, which, in the absence of a legal definition in the Commission
         proposal, required the Council to lay down guidelines on its application. (46) Those guidelines may now be found in recital 35 in the preamble to the directive. It follows that the intention of the Community
         legislature was to introduce a new concept at Community level, without it being linked with pre-existing concepts in international
         copyright law (47) or that of the Member States. This differentiates this concept somewhat from the concept of ‘equitable remuneration’ used
         in Article 5 and Article 8(2) of Directive 2006/115, which originated from international copyright law (48) and was adopted verbatim in the Community legal system.
      
      71.      Consequently, the choice of a new concept for compensating the author in the event of private copying appears, in the light
         of its drafting history, the need for it to be further filled out, its autonomy vis-à-vis Member States and international
         terminology, and the harmonising objective of Directive 2001/29, to be inspired by the efforts of the Community legislature
         to take into consideration the pre-existing national legislation originating in the different legal traditions of the Member
         States. At the same time, it can be assumed that it saw the need for a concept as flexible as possible, capable of developing
         in the light of regular reviews depending on technological and economic developments. (49)
      
      72.      Having regard to the above considerations, the answer to the first question referred is that the concept of ‘fair compensation’
         in Article 5(2)(b) of Directive 2001/29 is an autonomous Community law concept which must be interpreted uniformly in all
         the Member States and transposed by each Member State; it is however for each Member State to determine, for its own territory,
         the most appropriate criteria for assuring, within the limits imposed by Community law and by the directive in particular,
         compliance with that Community concept. 
      
      D –    The second question referred
      73.      By its second question referred, the referring court would essentially like to know whether the Member States are obliged
         to ensure a balance between the intellectual property rightholders and the persons directly or indirectly liable to pay the
         compensation. If that question is answered in the affirmative, the referring court asks whether the justification for the
         fair compensation to be achieved is the mitigation of the harm caused to the rightholder.
      
      74.      The first part of the question should in principle be answered in the affirmative in my opinion. The necessity to ensure such
         a balance arises first of all from recital 31 in the preamble to Directive 2001/29, in which reference is made to ensuring
         a ‘fair balance of rights and interests’ between the different categories of rightholders and users of protected subject-matter.
         The wording of Article 5(2)(b) also expressly refers to the fact that the limitation in respect of private copying is subject
         to the condition of ‘fair compensation’. From a semantic point of view alone, this concept implies a certain balance between
         conflicting interests. Apart from that, the Community legislature’s recourse to a concept like fairness in fact derives from
         legal philosophy, which facilitates a deeper understanding of the legislative considerations behind the rule. In that connection,
         it is necessary only to recall Aristotle who, in his work Nicomachean Ethics, made the first attempt to examine and structure that concept systematically, establishing that fairness is not only a virtue
         but is always to be thought of in relation to others. Aristotle argued that a person acted unfairly if he demanded more than
         he was entitled to by law. On the other hand, unfairness prevailed where someone received too little in proportion to his
         efforts. The task of ensuring equality, and consequently fairness, usually falls to the judge (dikastes) in Aristotle’s view. Here, it is noteworthy that in order to illustrate his theses on ‘commutative justice’ (iustitia commutativa) he referred, inter alia, to the right of every artist to receive a payment for his work which is appropriate in quantitative
         and qualitative terms. (50) It must be concluded therefore that the fair character of that compensation must be achieved, as the United Kingdom Government
         has correctly stated, by means of balancing the interests of the rightholder and the user. 
      
      75.      The fact that in its question, the referring court does not expressly refer to the ‘user’, but to the ‘persons directly or
         indirectly liable to pay the compensation’, is not capable of weakening those considerations. On the contrary, the question
         referred must be placed in the right context, which requires some clarification in this Opinion. The formal characteristic
         of being the person liable to pay compensation does not as such yet reveal anything about the identity of the natural person
         within the meaning of Article 5(2)(b) of Directive 2001/29 who avails himself of the private copying rule. In my opinion,
         that person should be taken as the focus rather than the person liable to pay compensation. Since the user must bear the economic
         burden of the compensation pursuant to the maxim cuius commoda, eius incommoda, (51) his interests should also be taken into account in the course of the balancing of interests. That appears to me to correspond
         more closely to the intention of the Community legislature which is expressed in recital 31 in the preamble to the directive.
      
      76.      Apart from that, Article 5(2)(b) of Directive 2001/29 does not determine who should actually be obliged to pay. Nor does recital
         35 in the preamble to the directive provide any help with interpretation. In certain circumstances, the person liable to pay
         may by all means be the user himself, as is for instance the case in relation to the ‘equitable remuneration’ provided for
         in Article 8(2) of Directive 92/100. (52) It should also be taken into account that in a system of lump‑sum compensation by means of a levy – as provided for in the
         Spanish legal system – those who are directly liable to pay such fair compensation, that is the dealers and importers according
         to Article 25(4)(a) of the TRLPI, that levy is normally passed on to the customer and therefore ultimately to the user via
         the purchase price. (53) Therefore, as the German Government correctly observes, (54) the effect of that provision on the dealers and importers proves to be neutral. Whilst they have to pay the lump-sum compensation
         to the authors, they do not suffer any prejudice as a result because they are reimbursed for the compensation by the user
         via the purchase price. In that respect, it would not be correct for the interests of the person liable to pay the compensation
         to be taken as the sole basis. However, that does not exclude them from being attributed some significance in certain circumstances,
         for instance when they act to protect the interests of the user.
      
      77.      Consequently, the first part of the question only makes sense if one understands the expression ‘the persons … indirectly
         liable to pay the compensation’ used by the referring court in a non-technical sense, namely to the effect that it means the
         users who ultimately bear the economic burden of the compensation. In those circumstances, the above considerations would
         apply.
      
      78.      As far as the second part of the question is concerned, it should be pointed out to begin with that ‘fair compensation’ within
         the meaning of Article 5(2)(b) of Directive 2001/29 is not aimed at compensating the rightholder for illegal actions in connection
         with the unauthorised reproduction of works and other subject‑matter. There is only a claim to compensation in connection
         with private copying, provided that such copying is permitted according to the copyright laws of the Member States. (55) The fact that – for instance on the internet via so-called ‘P2P’ (peer-to-peer) file sharing – widespread infringement of
         the essentially comprehensive reproduction rights of the author may be observed is not relevant in connection with that provision
         of the directive, and neither can it be regarded as a factor for the purpose of ensuring a balance between the interests of
         the rightholder and of the user. (56) Copies which are made illegally in that way in fact mostly serve commercial purposes. In any case, they serve purposes other
         than ‘private use’ within the meaning of Article 5(2)(b) of Directive 2001/29 and are therefore not covered by the limiting
         provision. (57)
      
      79.      The right to ‘fair compensation’ within the meaning of Article 5(2)(b) of Directive 2001/29, as the German Government correctly
         points out, primarily has the character of a reward. (58) This is apparent from the first sentence of recital 10, pursuant to which if authors or performers are to continue their
         creative and artistic work, they have to receive an ‘appropriate reward’ for the use of their work. Recital 35 makes clear
         that ‘fair compensation’ should also be classified in this category of rewards, where it is stated that in 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. 
      
      80.      On the other hand, legal categorisation of the legal concept of ‘fair compensation’ as a straightforward claim for damages,
         as the referring court apparently assumes, may not readily be confirmed. Of course, the exclusive reproduction right established
         in Article 2 of Directive 2001/29 constitutes an expression of the intellectual property of the author. An exception or limitation
         to that right under Article 5(2)(b) of the directive may therefore be regarded as interference with that fundamental right
         which is protected by Community law. (59) However, the criterion of harm does not necessarily have to be taken as a basis for determining fair compensation. The directive
         merely permits harm or prejudice to be taken as a guide, but does not make them binding criteria. (60)
      
      81.      Thus, it must be inferred from the second sentence of recital 35 in the preamble to the directive that when determining the
         form, detailed arrangements and possible level of such fair compensation, account should be taken of the particular circumstances
         of each case; in evaluating those circumstances, a ‘valuable criterion’ may be the possible harm to the rightholder. That
         suggests that possible harm, as the Spanish Government correctly observes, should not be regarded either as the sole criterion
         for determining such fair compensation or as the decisive criterion, but instead constitutes just one of a number of criteria,
         which the Member States may take as a basis for determining fair compensation. Further criteria, which are listed in recital
         35 in the preamble to the directive, may be added, for instance payment already received in some other form, the degree of
         use of technological protection measures or the minimal nature of the prejudice suffered. However, that list should not be
         regarded as exhaustive. (61)
      
      82.      Directive 2001/29 pleads, to a certain extent, for preservation of the private copying exception, when it states in the first
         sentence of recital 38 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 audiovisual material for private use, accompanied by fair compensation.
         However, at the same time it confers a wide discretion on the Member States as to how their respective national systems implement
         such fair compensation, (62) for instance when it provides, in the second sentence of recital 38, that that may include the introduction or continuation
         of remuneration schemes to compensate for the prejudice to rightholders.
      
      83.      That regulatory approach is consistent with the legal nature of a directive which, pursuant to the third paragraph of Article
         249 EC, is binding as to the result to be achieved, but largely leaves to the Member State the choice of form and methods. (63) At the same time, it is a feature of Directive 2001/29 that it contains individual, in part not very specific, Community
         law requirements, for instance pursuant to its recital 35 in relation to the form, detailed arrangements and level of the
         ‘fair compensation’. The obligation of each Member State to produce a particular result (64) is associated with the implementation of every directive, and in the case of Directive 2001/29 consists in ensuring financial
         compensation of authors by users, in the event that that Member State decides to provide for exceptions or limitations in
         relation to the author’s reproduction right pursuant to Article 5(2)(b). (65)
      
      84.      It follows from all the foregoing that the answer to the first part of the second question referred must be that, regardless
         of the system used by each Member State to calculate fair compensation, the Member States are obliged to ensure a fair balance
         between the persons affected – the intellectual property rightholders affected by the private copying exception, to whom the
         compensation is owed, on the one hand, and the persons directly or indirectly liable to pay the compensation, on the other.
         The answer to the second part of the question is that the concept of ‘fair compensation’ in Article 5(2)(b) of Directive 2001/29
         must be understood as a payment to the rightholder which, taking into account all the circumstances of the permitted private
         copying, constitutes an appropriate reward for the use of his protected work or other subject-matter.
      
      E –    The third to fifth questions referred
      85.      The referring court’s third to fifth questions all relate to how the Member States must organise their systems for the implementation
         of the condition as to fair compensation, where they introduce an exception or limitation pursuant to Article 5(2)(b) of Directive
         2001/29. Their objective is to have the Court determine what Community law requirements a national system, which, like the
         Spanish one, provides for a lump-sum payment to the rightholder in respect of the presumed use of equipment, devices and media
         for private copying, must meet. The contested issue, as to the compatibility of such national legislation with Community law,
         primarily Directive 2001/29, arises in particular against the background of the indiscriminate application of that legislation
         to a whole series of addressees and technical devices.
      
      86.      In proceedings under Article 234 EC, the Court cannot decide on the compatibility of national legal provisions with Community
         law provisions. However, it does have jurisdiction to give the national court all necessary guidance on the interpretation
         of Community law so as to enable that court to determine whether those legal provisions are compatible with the Community
         law provisions. (66)
      
      1.      Requirement of a link between the compensation and the presumed use for private copying 
      87.      The third question referred is a fundamental one and must therefore be examined first of all. By that question, the referring
         court would like to know whether there must necessarily be a link between the levy, through which the fair compensation is
         to be financed, and the presumed use of the abovementioned devices and storage media. In other words, the question is whether
         a method of calculating the payment to the rightholder on a lump-sum basis is in conformity with Community law.
      
      (a)      Linkage as an unwritten factual element
      88.      As already explained, an exception or limitation under Article 5(2)(b) of Directive 2001/29 may be regarded as a form of interference
         with the exclusive reproduction right of the rightholder which is permitted by Community law, (67) although in such a case that provision of the directive mandatorily requires compensation for the author. Where a Member
         State transposes that provision into its national legal system, the making of a private copy by a natural person must be regarded
         as the specific act of interference which, subject to further criteria to be laid down by statute, triggers the rightholder’s
         entitlement to financial compensation. 
      
      89.      In that respect, there is certainly a linkage between the making of a private copy and the payment which is owed. That applies
         regardless of how the respective Member State’s system of collection for compensation for private copying is organised in
         detail and whether it is financed, for instance, by means of a levy. Logically, from the viewpoint of Community law it must
         also be required that in any case there be a sufficiently close link between the relevant levy and the use of the abovementioned
         devices and storage media.
      
      90.      On the other hand, the requirements in relation to that link should not be raised so high that ultimately the actual use of
         the relevant devices for the purposes of private copying would have to be required. Rather, even potential use would have
         to be regarded as sufficient. A similar conclusion may be drawn from the judgment in SGAE, (68) in which the Court interpreted the ambiguous legal concept of ‘communication to the public’ within the meaning of Article
         3(1) of Directive 2001/29 and considered the mere possibility of a work being made available to the public, in the specific
         case by means of television sets, to be sufficient. (69) On the other hand, the Court did not consider it to be material that some users had not made use of that possibility because
         they had not switched on the television sets. (70) The comments of Advocate General Sharpston in her Opinion in that case are extremely valuable as she recalled that, according
         to the fundamental principles of copyright, copyright holders are remunerated on the basis not of the actual enjoyment of
         the work but of a legal possibility of that enjoyment. (71)
      
      (b)      Maintenance of linkage in a levy system allowing lump-sum payments
      91.      It is doubtful whether the requirement for a sufficiently close link between the use of the right and the corresponding financial
         compensation for private copying is maintained within a national levy system which employs a method of lump-sum calculation
         of the payment.
      
      92.      However, the requirement of a sufficiently close link does not prevent the Member States, when exercising the wide margin
         of discretion for implementation they enjoy, from introducing a system based on practical considerations, which is based not
         on the actual extent of private copying but on the presumed use for private copying by the users of devices which are capable
         of making such copies, and consequently calculates ‘fair compensation’ under Article 5(2)(b) of Directive 2001/29 on the basis
         of an estimate. Last but not least, the fact that it is almost impossible both to effectively monitor such reproduction and
         to make a statistical survey of the precise quantity of private copying would probably make the introduction of such a system
         at a Member State level appear to be necessary. (72) Therefore it must be presumed that as a general rule the rightholder is not in a position to find out whether and to what
         extent private reproduction has been carried out. Thus, a direct charge to the user must be excluded for reasons of practicality. (73) The Spanish, Greek, German and United Kingdom Governments refer expressly to these difficulties.
      
      93.      The lump-sum remuneration of the rightholder provided for under Spanish law, which is linked to the presumed use of devices
         and storage media, overcomes these practical difficulties in an objective way: the manufacturer, importer or dealer of a device
         or storage medium, which is in fact typically used for reproductions, directly pays a lump sum, which is demanded as remuneration
         for private copying for the benefit of all rightholders. Admittedly, the actual user is not subject to the payment obligation;
         it is ‘moved up’ to the first-mentioned group of persons. However, as already mentioned, it must be assumed that the lump
         sum is passed on to the purchaser of a device or storage medium, and ultimately to the user, via the purchase price. (74) Consequently, the remuneration is in effect linked to the typical actual use of the device or storage media for private copying.
      
      94.      Gearing the legislative approach to the objective suitability of a device for private copying is based, as the Spanish Government
         states in its written observations, (75) to a certain extent on a statutory presumption that in all probability the buyer will make use of this possibility. (76) Thus a sufficiently close link exists provided that that presumption is not rebutted by specific evidence to the contrary.
         That statutory presumption takes into account the connection required by Article 5(2)(b) of Directive 2001/29 between the
         use of the right, on the one hand, and fair compensation, on the other hand. Consequently, a method which calculates the rightholder’s
         remuneration as a lump sum should be regarded as being in principle compatible with Community law.
      
       (c)   Conclusion
      95.      Therefore, the answer to the third question referred is that, where a Member State opts for a system of charging or levying
         in respect of digital reproduction equipment, devices and media, such a charge can be based upon Article 5(2)(b) of Directive
         2001/29 only where it may be presumed that those equipment, devices and media are to be used for making reproductions covered
         by the private copying exception.
      
      2.      Indiscriminate application of the levy to undertakings and professional persons 
      96.      The fourth question referred is somewhat more specific in nature, since by it the referring court draws attention to a special
         feature of the Spanish levy system. It questions whether indiscriminately charging a levy, in particular to undertakings and
         professional persons, as provided for in the Spanish system, is compatible with the concept of ‘fair compensation’. In that
         context, the referring court proceeds on the assumption that undertakings and professional persons clearly purchase the digital
         reproduction devices and media in question for purposes other than private copying. (77) Thus, there is an important finding of facts in the question referred, which the Court must incorporate into its legal assessment.
      
      (a)      Need to take into account the particular circumstances of each case 
      97.      Indiscriminately charging a levy, without duly taking into account the fact that, owing to factors specific to a certain line
         of business, the devices in question could be acquired for purposes other than private copying, may not be based on Article
         5(2)(b) of Directive 2001/29. It is not ‘fair compensation’ within the meaning of that provision, especially since, as shown
         by recital 35, the Member States are expressly urged, (78) when determining the form, detailed arrangements and possible level of such fair compensation, to take account of the particular
         circumstances of each case. Consequently, that requirement would not be met in the case in the main proceedings.
      
      (b)      Necessary linkage between private copying and compensation
      98.      In addition, in the prevailing circumstances, such legislation would particularly disregard the link which, according to Article 5(2)(b)
         of Directive 2001/29, must exist between the act of interference and the corresponding financial compensation. In the main
         proceedings there would in fact already be no legal basis for compensation. According to that provision, the main requirement
         for compensation is a reproduction made ‘by a natural person for private use and for ends that are neither directly nor indirectly
         commercial’. 
      
      99.      Indiscriminately burdening an undertaking by means of a levy as compensation for private copying could not be justified, since
         first of all the private copies must have been made ‘by a natural person’, so that a reproduction ‘by an undertaking’ is not
         covered, at least on the basis of the wording. However, even looking at the reality of the situation, whereby the act of reproduction
         must necessarily be carried out by a natural person, for instance an employee of the undertaking, the attribution of an act
         of reproduction to the undertaking would raise legal questions upon which a conclusive opinion cannot be given. On the other
         hand, it follows indirectly from the spirit and purpose of the provision in Article 5(2)(b) of Directive 2001/29 that the
         copy in question must in any case be intended ‘for the private use of a particular person’. The making of a private copy for use by a legal person would therefore for example
         be excluded, in so far as that is understood to mean the use of the copy by a number of people. (79)
      
      100. However, even if exceptionally the act of reproduction were regarded as attributable, the factual conditions for application
         of Article 5(2)(b) would not be satisfied. That provision expressly excludes any type of copying for commercial purposes,
         regardless of whether it is for legal purposes (for example backup copies) or illegal commercial purposes (for example music
         piracy). In a case where, in the words of the referring court, undertakings or professional persons ‘clearly purchase for
         purposes other than private copying’, the abovementioned digital reproduction devices and storage media, for example for professional
         purposes, that would not be covered by the limitation in Article 5(2)(b). (80) Financial remuneration for the rightholders would accordingly in those circumstances go beyond what Directive 2001/29 actually
         required with regard to ensuring ‘fair compensation’. (81)
      
      101. From a legal point of view, the disputed national legislation expands the personal and material scope of Article 5(2)(b) of
         Directive 2001/29 by, first, extending the compensation obligation provided for in that article beyond natural persons and,
         second, by extending it to cases which do not involve a reproduction ‘for private use’. 
      
      (c)      Exhaustive regulation of ‘fair compensation’ in Article 5(2)(b) 
      102. The consequences of the above essentially depend on whether or not Article 5(2)(b) of Directive 2001/29 exhaustively regulates
         ‘fair compensation’ for private copying.
      
      103. If provisions of a directive regulate a particular matter exhaustively, then more far-reaching provisions adopted by Member
         States in relation to the same facts are not permitted. Whether a directive intends to make such an exhaustive regulation
         must be assessed on a case‑by‑case basis, taking into account the wording, objectives and the regulatory system of the directive. (82) A directive may in fact contain both provisions of an exhaustive nature, and at the same time provisions which allow the
         Member States a discretion – for instance with regard to the level of protection afforded by a provision. (83)
      
      104. In that context, reference should again be made to the fact that ‘fair compensation’ within the meaning of that provision
         of the directive is a sufficiently precise Community law concept. Despite the relatively low degree of harmonisation in Directive
         2001/29 ‑–which in that respect is comparable to a framework directive – Article 5(2)(b) clearly lays down the circumstances
         in which the rightholder is entitled to remuneration. In addition, the person who may be held liable may be ascertained with
         precision from the spirit and purpose of the provision: in case of doubt, it is the user who benefits from the private copying
         rule. (84) Against this background, it must be assumed that Article 5(2)(b) contains an exhaustive Community law regulation of ‘fair
         compensation’ for private copying, which prevents the Member States – at least as far as private copying is concerned – from
         unilaterally expanding the circle of those who can be held liable to other groups of people such as undertakings and professional
         persons, who from experience purchase digital reproduction devices and media for purposes other than private use. 
      
      105. Accordingly, remuneration which is granted to rightholders as a result of the indiscriminate application of a levy to undertakings
         and professional persons on the basis of a private copying rule also cannot amount to ‘fair compensation’ within the meaning
         of Article 5(2)(b) of Directive 2001/29.
      
      106. However, that does not mean that charging a copyright law levy on undertakings and professional persons pursuant to Article
         5(2)(b) of Directive 2001/29 is fundamentally prohibited. The directive harmonises only certain aspects of copyright law.
         Consequently, Article 5(2)(b) of Directive 2001/29 merely precludes a national provision which demands a levy from undertakings
         and professional persons in respect of compensation for private copying on devices, media and equipment, if it may be assumed
         that those devices, media and equipment will not be used for private copying within the meaning of Article 5(2)(b) of Directive
         2001/29. However, Article 5(2)(b) of Directive 2001/29 does not preclude a national provision which imposes a levy for other
         reasons. (85)
      
      (d)      Conclusion
      107. Therefore, the answer to the fourth question referred is that remuneration which is granted to rightholders, as a result of
         the indiscriminate application of a levy to undertakings and professional persons on the basis of a private copying rule,
         is in any case not ‘fair compensation’ within the meaning of Article 5(2)(b) of Directive 2001/29. 
      
      3.      Compatibility of the Spanish levy system with Directive 2001/29
      108. The fifth question referred, with regard to whether a levy system such as that applicable in Spain infringes Directive 2001/29,
         must be answered in the light of the above considerations and taking into account the findings of the referring court.
      
      109. A compensation system for private copying financed by a levy, which for practical reasons determines ‘fair compensation’ by
         means of a lump sum is, in the light of the broad discretion enjoyed by the Member States, essentially compatible with Directive
         2001/29. However, the national legislature must ensure that the correlation required by Article 5(2)(b) of Directive 2001/29
         between the interference with the comprehensive reproduction right of the rightholder and the corresponding financial compensation
         is substantially maintained. (86)
      
      110. Where such correlation no longer exists, for instance because the relevant levy is largely applied to different situations
         in which there is no limitation of rights which would justify the financial compensation, the remuneration granted to the
         rightholders does not in any case constitute ‘fair compensation’ within the meaning of Article 5(2)(b) of Directive 2001/29.
      
      111. Therefore the answer to the fifth question referred is that a national system which indiscriminately provides for a levy for
         private copying on all equipment, devices and media infringes Article 5(2)(b) of Directive 2001/29 in so far as there is insufficient
         correlation between the fair compensation and the limitation of the private copying right justifying it, because to a large
         extent the levy is applied to different situations in which the limitation of rights which would justify the compensation
         does not exist.
      
      VII –  Conclusion
      112. In the light of the above considerations, I propose that the Court should answer the questions referred by the Audiencia Provincial
         de Barcelona as follows:
      
      (1)      The concept of ‘fair compensation’ in 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 is an autonomous
         Community law concept which must be interpreted uniformly in all the Member States and transposed by each Member State; it
         is however for each Member State to determine, for its own territory, the most appropriate criteria for assuring, within the
         limits imposed by Community law and by Directive 2001/29 in particular, compliance with that Community concept.
      
      (2)      The concept of ‘fair compensation’ must be understood as a payment to the rightholder which, taking into account all the circumstances
         of the permitted private copying, constitutes an appropriate reward for the use of his protected work or other subject-matter.
         Regardless of the system used by each Member State to calculate fair compensation, the Member States are obliged to ensure
         a fair balance between the persons affected – the intellectual property rightholders affected by the private copying exception,
         to whom the compensation is owed, on the one hand, and the persons directly or indirectly liable to pay the compensation,
         on the other.
      
      (3)      Where a Member State opts for a levy system in respect of compensation for private copies on digital reproduction equipment,
         devices and media, that levy must, in accordance with the aim pursued by Article 5(2)(b) of Directive 2001/29 and the context
         of that provision, necessarily be linked to the presumed use of those equipment and media for making reproductions covered
         by the private copying exception, meaning that the application of the charge is justified only where it may be presumed that
         the digital reproduction equipment, devices and media are to be used for private copying.
      
      (4)      The indiscriminate application of a levy, on the basis of a private copying rule, to undertakings and professional persons
         who clearly acquire digital reproduction devices and media for purposes other than private copying, is not compatible with
         the concept of ‘fair compensation’ within the meaning of Article 5(2)(b) of Directive 2001/29.
      
      (5)      A national system which indiscriminately provides for a levy for compensation for private copying on all equipment, devices
         and media, infringes Article 5(2)(b) of Directive 2001/29, in so far as there is insufficient correlation between the fair
         compensation and the limitation of the private copying right justifying it, because it cannot be assumed that those equipment,
         devices and media will be used for private copying.
      
      1 –	Original language: German.
      
      2 –	See, to that effect, also Falcón Tella, R., ‘El llamado “canon por derechos de autor” (Copyright Levy) o compensación equitativa
         por copia privada (I): antecedentes y configuración en la Ley 23/2006, de 7 julio (RCL 2006, 1386)’, Quincena Fiscal Aranzadi, No 15/2006, p. 1, who refers to the development of various methods of reproduction. See also Ortega Díaz, J.F., ‘Medidas
         tecnológicas y derechos de autor’, Noticias de la Unión Europea, 2008, No 286, p. 67, who refers to the challenges to the protection of copyright created by the inventions in the 1980s,
         for example photocopiers and music cassettes and by the computer in the so-called ‘information age’.
      
      3 –	Pursuant to the Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community
         of 13 December 2007 (OJ 2007 C 306, p. 1), the reference for a preliminary ruling is now governed by Article 267 of the Treaty
         on the Functioning of the European Union.
      
      4 –	OJ 2001 L 167, p. 10.
      
      5 –	BOE No 162 of 8 July 2006, p. 25561.
      
      6 –	BOE No 148 of 19 June 2008, p. 27842.
      
      7 –	The WIPO Copyright Treaty, adopted in 1996 by the World Intellectual Property Organisation (WIPO), is a special agreement
         within the meaning of Article 20 of the Berne Convention; it forms a framework for adapting national copyright laws to the
         requirements of digital network media (published in OJ 2000 L 89, p. 8). 
      
      8 –	Directive 2009/24/EC of the European Parliament and of the Council of 23 April 2009 on the legal protection of computer
         programs (OJ 2009 L 111, p. 16), 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 (OJ 2006 L 376,
         p. 28), Council Directive 93/83/EEC of 27 September 1993 on the coordination of certain rules concerning copyright and rights
         related to copyright applicable to satellite broadcasting and cable retransmission (OJ 1993 L 248, p. 15), Directive 2006/116/EC
         of the European Parliament and of the Council of 12 December 2006 on the term of protection of copyright and certain related
         rights (OJ 2006 L 372, p. 12), Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal
         protection of databases (OJ 1996 L 77, p. 20), and Directive 2001/84/EC of the European Parliament and of the Council of 27 September
         2001 on the resale right for the benefit of the author of an original work of art (OJ 2001 L 272, p. 32).
      
      9 –	See recital 5.
      
      10 –	See recital 22.
      
      11 –	See, for example, inter alia, recitals 9, 14 and 23 in the preamble to the directive and recital 5 in the preamble to the
         WIPO Copyright Treaty, which speaks of the need ‘to maintain a balance between the rights of authors and the larger public
         interest, particularly education, research and access to information, as reflected in the Berne Convention’.
      
      12 –	Buhrow, A., ‘Richtlinie zum Urheberrecht in der Informationsgesellschaft’, European Law Reporter, 2001, Volume 10, p. 313, takes Article 5 of Directive 2001/29 to be a political compromise, in which the differing legal
         traditions and views found expression. According to the author’s view, the actual extent of harmonisation remains questionable,
         in the light of the numerous limiting provisions, until it is finally implemented in all Member States.
      
      13 –	Ullrich, J.N., ‘Clash of Copyrights – Optionale Schranke and zwingender finanzieller Ausgleich im Fall der Privatkopie
         nach Art. 5 Abs. 2 Buchst. b Richtlinie 2001/29/EG und Dreistufentest’, Gewerblicher Rechtsschutz und Urheberrecht – Internationaler Teil, 2009, Volume 4, p. 283, refers to the fact that, as in the rest of the world, the information society in Europe finds itself
         exposed to a multitude of national copyright law systems which differ, sometimes considerably, in terms of their conception,
         form and definition of copyright law protection. In the view of the author, reconciling the differences between the continental
         European concept of copyright protection and the concept of copyright in common law countries is and remains the greatest
         challenge.
      
      14 –	Philapitsch, F., Die digitale Privatkopie, Graz, 2007, p. 85, refers to the considerable number of limiting provisions which emerged in the course of the legislative
         process. Whilst there were still 9 provisions in the proposal for the directive, these increased in the second amended proposal
         to 11 and ultimately as a result of the joint position to the final number of 22.
      
      15 –	According to Metzger, A. and Kreutzer, T., ‘Richtlinie zum Urheberrecht in der Informationsgesellschaft – Privatkopie trotz
         technischer Schutzmaßnahmen?’, Multimedia und Recht, 2002, Volume 3, p. 139, the directive allows the Member States considerable discretion in relation to implementation. They
         assert that the reason for this is that it would not have been possible to agree on central issues in relation to a future
         system of copyright law at a European level. In the view of Guntrum, S., Zur Zukunft der Privatkopie in der Informationsgesellschaft, Hamburg, 2007, p. 126, the optional character and the wording of the European limitation on private copies and the corresponding
         recitals point in favour of a free choice as to the form of the limitation on private copies.
      
      16 –	To that effect, Guntrum, S., loc. cit. (footnote 15), p. 118, 125; Plaza Penadés, J., ‘Propiedad intelectual y sociedad
         de la información’, Contratación y nuevas tecnologías, Madrid, 2005, p. 147; Bércovitz Rodríguez-Cano, R., ‘El canon de copia privada: escaramuza sobre el fuero’, Aranzadi Civil, No 14/2009, p. 1; Hugenholtz, B., Guibault, L. and van Geffen, S., ‘The Future of Levies in a Digital Environment’, 2003,
         available on the internet (http://www.ivir.nl/publications/other/DRM&levies-report.pdf), p. 32, refer to the fact that Directive
         2001/29 does not impose any obligation on the Member States with regard to introducing an exception for private copies. They
         argue that the national legislature is therefore free to completely prohibit private copies or to allow them to some extent.
      
      17 –	See Case 38/77 Enka [1977] ECR 2203, paragraph 20.
      
      18 –	See Middeke, A., Handbuch des Rechtsschutzes in der Europäischen Union, 2nd edition, Munich, 2003, p. 226, paragraph 38, and Case 244/78 Union laitière normande [1979] ECR 2663, paragraph 5.
      
      19 –	See, inter alia, Joined Cases C‑297/88 and C‑197/89 Dzodzi [1990] ECR I‑3763, paragraphs 33 and 34; Case C‑231/89 Gmurzynska-Bscher [1990] ECR I‑4003, paragraphs 18 and 19; Case C‑28/95 Leur-Bloem [1997] ECR I‑4161, paragraph 24; Case C‑275/06 Promusicae [2008] ECR I‑271, paragraph 36; and Case C‑2/06 Kempter [2008] ECR I‑411, paragraph 42.
      
      20 –	See, inter alia, Case C‑379/98 PreussenElektra [2001] ECR I‑2099, paragraph 38; Case C‑18/01 Korhonen and Others [2003] ECR I‑5321, paragraph 19; Case C‑380/01 Schneider [2004] ECR I‑1389, paragraph 21; Case C‑295/05 Asemfo [2007] ECR I‑2999, paragraph 30; and Joined Cases C‑261/07 and C‑299/07 VTB-VAB [2009] ECR I‑0000, paragraph 32.
      
      21 –	See, inter alia, Case 244/80 Foglia [1981] ECR 3045, paragraph 18; Joined Cases C‑422/93 to C‑424/93 Zabala Erasun and Others [1995] ECR I‑1567, paragraph 29; Case C‑415/93 Bosman [1995] ECR I‑4921, paragraph 61; Case C‑314/96 Djabali [1998] ECR I‑1149, paragraph 19; PreussenElektra, cited in footnote 20 above, paragraph 39; Schneider, cited in footnote 20 above, paragraph 22; Case C‑212/06 Government of the French Communityand Walloon Government [2008] ECR I‑1683, paragraph 29; and VTB-VAB, cited in footnote 20 above, paragraph 33.
      
      22 –	See pp. 2 and 13 of the order for reference.
      
      23 –	See the preamble (Part I, fourth paragraph) to Amending Law No 23/2006 of 7 July 2006, in which it can be read that the
         transposition of Directive 2001/29 into Spanish law had primarily as its objective the principle of ‘literal transposition’
         of that directive and of the ‘minimal reform of the legislation in force’. Ruiz Zapatero, G., ‘Naturaleza y límites constitucionales
         de la compensación equitativa por copia digital privada establecida en la Ley 23/2006 de modificación del texto refundido
         de la Ley de Propiedad Intelectual’, Jurisprudencia Tributaria Aranzadi, 2007, Volume 7, takes the view that the original wording of Article 25 of the TRLPI could not have been maintained any longer
         considering the difference between the terms used there and Directive 2001/29. Amending Law No 23/2006 had made the necessary
         changes, which were primarily of a technical nature, to make it more precise. Falcón Tella, R., loc. cit. (footnote 2), p. 4,
         explains that the amendment to the previously used concept of ‘fair remuneration’ in Article 25 of the TRLPI arose from the
         intention to follow the terminology of Directive 2001/29.
      
      24 –	See, to that effect, Case C‑58/98 Corsten [2000] ECR I‑7919, paragraph 24, and Joined Cases C‑482/01 and C‑493/01 Orfanopoulos and Oliveri [2004] ECR I‑5257, paragraph 42.
      
      25 –	See Case C‑475/99 Ambulanz Glöckner [2001] ECR I‑8089, paragraph 10; Case C‑153/02 Neri [2003] ECR I‑13555, paragraphs 34 and 35; Orfanopoulos and Oliveri,, cited in footnote 24 above, paragraph 42; and Case C‑267/03 Lindberg [2005] ECR I‑3247, paragraphs 41 and 42.
      
      26 –	It is apparent from the case-law that the Court endeavours to give useful answers to the questions which are referred to
         it. See Joined Cases C‑402/07 and C‑432/07 Sturgeon and Others [2009] ECR I‑0000, paragraph 28; Case C‑445/06 Danske Slagterier [2009] ECR I‑0000, paragraph 29; and Case C‑41/90 Höfner and Elsner [1991] ECR I‑1979, paragraph 16.
      
      27 –	Case C‑212/04 Adeneler and Others [2006] ECR I‑6057, paragraph 115, and Case C‑304/08 Plus Warenhandelsgesellschaft [2010] ECR I‑0000, paragraph 17.
      
      28 –	See Joined Cases C‑397/01 to C‑403/01 Pfeiffer and Others [2004] ECR I‑8835, paragraphs 115, 116, 118 and 119), and Adelener and Others, cited in footnote 27 above, paragraph 111.
      
      29 –	See, inter alia, Case 327/82 Ekro [1984] ECR 107, paragraph 11; Case C‑287/98 Linster [2000] ECR I‑6917, paragraph 43; Case C‑357/98 Yiadom [2000] ECR I‑9265, paragraph 26; Case C‑245/00 SENA [2003] ECR I‑1251, paragraph 23; Case C‑55/02 Commission v Portugal [2004] ECR I‑9387, paragraph 45; Case C‑188/03 Junk [2005] ECR I‑885, paragraphs 27 to 30; and Case C‑306/05 SGAE [2006] ECR I‑11519, paragraph 31.
      
      30 –	See Ekro, cited in footnote 29 above, paragraph 14.
      
      31 –	See on this point my Opinion in Case C‑62/06 Zefeser [2007] ECR I‑11995, points 32 and 33.
      
      32 –	This is the view of Riesenhuber, K., Europäische Methodenlehre, Berlin, 2006, p. 247, paragraph 7.
      
      33 –	See Case C‑369/90 Micheletti [1992] ECR I‑4239, paragraphs 10 to 15, in connection with the concept of ‘nationality’ and Case 12/76 Tessili [1976] ECR 1473, paragraph 14, in relation to the concept of ‘place of performance’ for the purposes of the Convention of
         27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters.
      
      34 –	See Case 105/84 Danmols Inventar [1985] ECR 2639, paragraphs 22 to 27, on the concept of ‘employee’ within the meaning of Council Directive 77/187/EEC of
         14 February 1977 on the approximation of the laws of the Member States relating to the safeguarding of employees’ rights in
         the event of transfers of undertakings, businesses or parts of businesses (OJ 1977 L 61, p. 26). 
      
      35 –	See, inter alia, Case C‑156/98 Germany v Commission [2000] ECR I‑6857, paragraph 50; Case C‑53/05 Commission v Portugal [2006] ECR I‑6215, paragraph 20; and SGAE, cited in footnote 29 above, paragraph 34.
      
      36 –	See paragraph 16 of the written observations of the United Kingdom Government.
      
      37 –	According to the view of Riesenhuber, K., loc. cit. (footnote 32), p. 246, paragraph 6, the approximation of laws means
         that an autonomous Community law concept should be created. If it is the intention to approximate laws, the author argues
         that one standard has to be set. By means of dynamic reference to the national interpretation at the time concerned, Community law
         would relinquish its autonomy, whereas a static reference to its original state would fossilise it. Rott, P., ‘What is the
         Role of the ECJ in EC Private Law?’, Hanse Law Review, No 1/2005, p. 8, points out that the principle of autonomous interpretation causes difficulties in those cases in which
         Community law uses general clauses. The author speaks strictly against allowing Member States the freedom to find their own
         interpretation of this concept. In the author’s view, this stance is unacceptable if the Community aspires to harmonisation
         of the Member States’ legislation, for instance on the basis of Article 95 EC. The use of general clauses was a regulatory
         technique which was customarily applied in the continental European legal system where it proves to be impossible to define
         certain definitional elements in advance. However, the author asserts that this could not have the objective of limiting the
         influence of Community law on the legal systems of the Member States.
      
      38 –	Cited in footnote 29 above.
      
      39 –	OJ 1992 L 346, p. 61.
      
      40 –	SENA, cited in footnote 29 above, paragraph 21.
      
      41 –	Ibid., paragraphs 7, 25, and 34.
      
      42 –	Ibid., paragraph 32.
      
      43 –	Ibid., paragraph 34.
      
      44 –	Ibid., paragraph 36.
      
      45 –	Ibid., paragraph 38.
      
      46 –	See Common Position (EC) No 48/2000 adopted by the Council on 28 September 2000, pursuant to the procedure under Article
         251 of the Treaty establishing the European Community, with a view to adopting a directive of the European Parliament and
         of the Council on the harmonisation of certain aspects of copyright and related rights in the information society (OJ 2000
         C 344, p. 1), recital 19. 
      
      47 –	According to the established case-law of the Court, Community legislation must, so far as possible, be interpreted in a
         manner that is consistent with international law, in particular where its provisions are intended specifically to give effect
         to an international agreement concluded by the Community (see, inter alia, Case C‑61/94 Commission v Germany [1996] ECR I‑3989, paragraph 52; Case C‑341/95 Bettati [1998] ECR I‑4355, paragraph 20; and SGAE, cited in footnote 29 above, paragraph 35). Certain international copyright law conventions give the signatory States the
         possibility of providing for limitations or exceptions in certain special cases, in relation to the rights granted to the
         authors of works, such as for example the revised Berne Convention (Article 9), the WIPO Copyright Treaty (Article 10) and
         the Convention on Trade‑Related Aspects of Intellectual Property Rights (TRIPS) (Article 13). However, no concept may be taken
         from any of these which would correspond exactly to the concept of ‘fair compensation’ within the meaning of Article 5(2)(b)
         of Directive 2001/29.
      
      48 –	See Articles 11bis(2) and 13(1) of the revised Berne Convention.
      
      49 –	Thus also Carbajo Cascón, F., ‘Copia privada y compensación equitativa’, Noticias de la Unión Europea, No 286/2008, pp. 34 and 35. 
      
      50 –	See Aristotle, Nicomachean Ethics, fifth book, seventh chapter – Commutative justice, 322 BC, 1132b. There it states: ‘Das Gesagte muss auch noch in anderer
         Hinsicht, bei den Leistungen der verschiedenen Künste, vor Augen gehalten werden. Es wäre um sie geschehen, wenn der Künstler
         nicht tätig ein Produkt schüfe, das sich quantitativ und qualitativ bewerten ließe, und nicht leidend dafür sowohl quantitativ
         als qualitativ entsprechend ausgelohnt würde.’ (German translation: Eugen Rolfes, ed. Günther Bien, 4th edition, Hamburg,
         1985, p. 110).
      
      51 –	This Roman law maxim states that the person who derives benefit from a thing should also bear the disadvantages. According
         to the submissions of the Spanish Government, the Spanish levy system is based on this principle.
      
      52 –	Article 8(2) of Directive 92/100 provides as follows: ‘Member States shall provide a right in order to ensure that a single
         equitable remuneration is paid by the user, if a phonogram published for commercial purposes, or a reproduction of such phonogram, is used for broadcasting by wireless
         means or for any communication to the public, and to ensure that this remuneration is shared between the relevant performers
         and phonogram producers.’
      
      53 –	Falcón Tella, R., clearly proceeds on this basis, in ‘El llamado ‘canon por derechos de autor’ (Copyright Levy) o compensación
         equitativa por copia privada (II): antecedentes y configuración en la Ley 23/2006, de 7 julio (RCL 2006, 1386)’, Quincena Fiscal Aranzadi, No 17/2006, p. 1, when he refers to the spirit and purpose of the levy, which in his opinion consists in allowing the dealers
         and – via them – the buyers of digital reproduction equipment, devices and media to contribute to the fair compensation. See
         also Carbajo Cascón, F., loc. cit. (footnote 49), p. 26, who points out that the manufacturers, importers and dealers who
         are liable to pay this levy normally passed it on to the customers via the purchase price, by means of which they ensured
         a balance between the interests of the author and the user. Similarly, see also Bércovitz Rodríguez-Cano, R., ‘Compensación
         equitativa por copia privada’, Aranzadi Civil, No 16/2007, p. 2, and the same author, loc. cit. (footnote 16) , p. 1.
      
      54 –	See p. 11, paragraph 26 of the written observations of the German Government.
      
      55 –	See, to that effect, Carbajo Cascón, F., loc. cit. (footnote 49), p. 31, who does not see ‘private copies’ within the meaning
         of the Spanish rule in Article 31(2) of the TRLPI as including the reproduction of illegal subject-matter (for example in
         the course of online music piracy). He refers at the same time to the unambiguous wording of this rule (‘… a partir de obras
         a las que haya accedido legalmente …’).
      
      56 –	Philapitsch, F., loc. cit. (footnote 14), p. 91, takes the view that ‘fair compensation’ according to Article 5(2)(b) of
         Directive 2001/29 is merely provided for in relation to legitimate private reproduction, as is described in the directive.
         He argues that the harm suffered as a result of illegal copying in the broader sense should not be compensated for in this
         way and is accordingly not an admissible criterion for determining the system of compensation either.
      
      57 –	See, to that effect, Hugenholtz, B., Guibault, L. and van Geffen, S., loc. cit. (footnote 16), p. 32, who do not see acts
         of reproduction which go beyond private use (for example music piracy) as being within the scope of this exception to the
         rule.
      
      58 –	Philapitsch, F., loc. cit. (footnote 14), p. 90, speaks of a ‘reward for reproduction’ in connection with the exception
         to the rule in Article 5(2)(b) of Directive 2001/29. Carbajo Cascón, F., loc. cit. (footnote 49), p. 26, speaks of ‘a concept
         of reward’ in relation to private copying.
      
      59 –	According to the Court’s case-law, the right to property, which includes the right to intellectual property, is a fundamental
         right, which is protected in the Community legal system as a general principle of Community law (see, to that effect, Case C‑479/04
         Laserdisken [2006] ECR I‑8089, paragraph 65, and Promusicae, cited in footnote 19 above, paragraph 62). Recital 9 in the preamble to Directive 2001/29 also states that intellectual
         property has been recognised as an integral part of property.
      
      60 –	See, to that effect, also Ullrich, J. N., loc. cit. (footnote 13), p. 291. The author states that by citing ‘harm’ as a
         criterion, the Community legislature wanted to take into account the common law legal tradition, which attributes a central
         role to the harm caused by the private copying in deciding on the amount of the financial compensation to be awarded. However,
         the author asserts that since the relevance of harm for the purpose of determining an appropriate reward is unknown to continental
         European copyright law, the Community legislature decided to reconcile both legal traditions by means of the directive permitting
         harm or prejudice to be taken as a guide, but not making these binding criteria. However, one thing recital 35 does adhere
         to by way of general application: where a rightholder suffers prejudice as a result of the private copy which has been taken,
         which exceeds a minimum level, all legal traditions shall provide for financial compensation for him.
      
      61 –	See point 35 of the Opinion of Advocate General Tizzano in Case C‑245/00 SENA [2003] ECR I‑1251.
      
      62 –	Lehmann, M., in Handbuch desUrheberrechts (ed. Ulrich Loewenheim), 1st edition, Munich, 2003, p. 878, paragraph 46, also proceeds on the basis that the Member States
         retain free discretion as to how the ‘fair compensation’ for the purposes of Article 5(2)(b) of Directive 2001/29 should be
         calculated and organised in detail.
      
      63 –	See Dreier, T., ‘Die Umsetzung der Urheberrechtsrichtlinie 2001/29/EG in deutsches Recht’, Zeitschrift für Urheber- und Medienrecht, 2002, p. 28, according to which Directive 2001/29, by its nature, is only binding as to the result to be achieved, and leaves
         it to the discretion of the Member States as to the choice of form and methods. The author observes that at times the directive
         allows the national legislature considerable latitude, recalling the 20 optional out of a total of 21 limiting provisions.
         Carbajo Cascón, F., loc. cit. (footnote 49), p. 26, complains about the lack of precision in the requirements of the directive,
         which in his view undermines the objective of harmonisation it pursues. Ullrich, J.N., loc. cit. (footnote 13), p. 291, points
         out that the Community legislature drafted Article 5(2)(b) of Directive 2001/29 following a careful review of the relevant
         rules in force in the Member States. In the course of that review, it had established that where compensation was regulated
         by a Member State, according to the consistent legal tradition of all Member States, it took the form of financial compensation,
         which only exhibited differences with regard to its form, detailed arrangements and level. In the view of the author, the
         Community legislature intended to fix those lowest common denominators in Article 5(2)(b), whilst the Member States were to
         continue to regulate the form and details of the payment. In support of this argument, the author cites the wording of the
         second sentence of recital 35.
      
      64 –	The concept of ‘Ziel’ (objective) in the German version of the third paragraph of Article 249 EC is also understood in
         the German language jurisprudence in the sense of an ‘Ergebnis’ (result) prescribed by the directive. This opinion is supported
         by the wording in other language versions (‘résultat’, ‘result’, ‘resultado’, ‘risultato’, ‘resultaat’). The Member States
         must consequently provide for a legal position desired by the directive (see, to that effect, Schroeder, W., in EUV/EGV – Kommentar (ed. Rudolf Streinz), Munich, 2003, Article 249 EC, paragraph 77, p. 2178, and Biervert, B., in EU-Kommentar (ed. Jürgen Schwarze), Baden-Baden, 2000, Article 249 EC, paragraph 25, p. 2089). For that reason, the French concept of
         ‘obligation de résultat’ has established itself in the jurisprudence (see Lenaerts, K. and Van Nuffel, P., Constitutional Law of the European Union, 2nd edition, London, 2006, paragraph 17-123, p. 768).
      
      65 –	In the view of Häuser, M., ‘Pauschalvergütung and digitale Privatkopie’, Computer und Recht, 2004, p. 830, the directive unequivocally makes clear that, where the national legislature decides in favour of private
         copying, it is obliged to ensure fair compensation for the rightholders. In this way, he argues, it is made clear that the
         limitation of private copying and the system of an obligation to reward the rightholder constitute two sides of the same coin
         which may not be separated.
      
      66 –	See, inter alia, Case 6/64 Costa [1964] ECR 585; Enka, cited in footnote 17 above, paragraph 22; Case C‑292/92 Hünermund [1993] ECR I‑6787, paragraph 8; Case C‑17/00 De Coster [2001] ECR I‑9445, paragraph 23; and Case C‑265/01 Pansard and Others [2003] ECR I‑683, paragraph 18.
      
      67 –	See point 80 of this Opinion.
      
      68 –	SGAE, cited in footnote 29 above.
      
      69 –	Ibid., paragraphs 37, 38 and 43 et seq.
      
      70 –	Ibid., paragraph 43.
      
      71 –	See point 67 of the Opinion of Advocate General Sharpston in SGAE (cited in footnote 29 above). There she refers in turn to the comments of Advocate General La Pergola in his Opinion in Case
         C‑293/98 Egeda [2000] ECR I‑629, point 22, who stated the following: ‘[The] argument [, that communication to the public cannot be assumed
         because the actual receipt of the broadcast work depends upon an independent action by the guests,] contradicts one of the
         fundamental principles of copyright: copyright holders are remunerated on the basis not of the actual enjoyment of the work
         but of a legal possibility of that enjoyment. For example, publishers must pay royalties to authors for their novels on the
         basis of the number of copies sold, whether or not they are ever read by their purchasers. Similarly, hotels that are responsible
         for the – simultaneous, uncut and unchanged – internal cable retransmission of an original satellite broadcast cannot refuse
         to pay the author the remuneration due to him by maintaining that the broadcast work was not actually received by the potential
         viewers who have access to the televisions in their rooms.’
      
      72 –	See, to that effect, the Commission report ‘Fair compensation for acts of private copying’ of 14 February 2008, which is
         available on the internet (http://ec.europa.eu/internal_market/copyright/docs/levy_reform/background_en.pdf). In that report,
         a ‘private copying levy’ is defined as a form of compensation for rightholders based on the premiss that an act of private
         copying cannot be licensed for practical purposes and thus causes economic harm to the relevant rightholders. It is also pointed
         out that the private copying levy system was introduced at a Member State level on the basis that there were no effective
         means to monitor and therefore authorise the reproduction of works for private use.
      
      73 –	See, to that effect, Geerlings, J., ‘Das Urheberrecht in der Informationsgesellschaft and pauschale Geräteabgaben im Lichte
         verfassungs- and europarechtlicher Vorgaben’, Gewerblicher Rechtsschutz und Urheberrecht, 2004, Volume 3, p. 208, who examines the flat-rate levy system which had already applied in Germany from 1965 (Paragraph
         53(5) of the Urheberrechtsgesetz (Law on copyright) (old version)/Paragraphs 54 and 54a of the Urheberrechtsgesetz (new version)),
         which demonstrates similarities with the Spanish system in this respect. The German system is also based on the premiss that
         charging a fee directly to the user does not appear practicable, with the consequence that it is not triggered by the act
         of reproduction but by the sale of devices which facilitate private copying.
      
      74 –	See point 76 of this Opinion.	
      
      75 –	See p. 19, paragraph 44 of the written observations of the Spanish Government.
      
      76 –	See Bercovitz Rodríguez-Cano, R. loc. cit. (footnote 16), p. 2, in whose view Article 25 of the TRLPI proceeds, in imposing
         a levy, on the basis of a rebuttable presumption: the devices and storage media acquired are intended for private copying.
      
      77 –	The Commission proceeds on the same basis in its report ‘Fair compensation for acts of private copying’ of 14 February
         2008, referring to statements from a number of collecting societies (see footnote 72 above), point 4.2, p. 12.
      
      78 –	In recital 35, it states: ‘When determining the form, detailed arrangements and possible level of such fair compensation,
         account should be taken of the particular circumstances of each case.’
      
      79 –	See Plaza Penadés, J., loc. cit. (footnote 16), p. 152, in whose opinion the provision in Article 5(2)(b) of Directive
         2001/29 does not cover a copy which a natural person makes for use by a legal person (under public law or civil law), in so
         far as that is taken to mean the use of the copy by a number of people. On the other hand, the author is clearly of the view
         that a legal person may also make use of the private copying provision, provided that the copy is used exclusively for the
         private use of the legal person.
      
      80 –	See Plaza Penadés, J., loc. cit. (footnote 16), p. 152, who does not see the use of the relevant copy by a legal person
         for commercial purposes as being covered by the scope of Article 5(2)(b) of Directive 2001/29.
      
      81 –	See, in this context, the answer from Mr McCreevy, European Commissioner for the Internal Market and Services, of 19 September
         2007 to the written question from the Member of the European Parliament, Raül Romeva i Rueda, of 5 June 2007 on the application
         of the digital levy in Spain (E‑2864/07). In that answer, the Commissioner expresses the view of the Commission: only devices
         and equipment that can be used, and are effectively used to produce private copies can attract a levy. The Commission also
         takes the view that equipment that is used for commercial purposes (for example in companies, public administrations) should
         not attract a levy since this would clearly go beyond the requirement to provide for the compensation for permitted acts (that
         is private copying) as laid down in the directive.
      
      82 –	See, to that effect, Herrnfeld, H.-H., EU-Kommentar (ed. Jürgen Schwarze), 2nd edition, Baden-Baden, 2009, Article 94, p. 1127, paragraph 42.
      
      83 –	See Case C‑11/92 Gallagher [1993] ECR I‑3545, paragraph 11 et seq., and Case C‑323/93 Crespelle [1994] ECR I‑5077, paragraph 33 et seq.
      
      84 –	See points 75 to 78 of this Opinion.
      
      85 –	Such a levy, unconnected to the compensation for private copying under Article 5(2)(b) of Directive 2001/29, and presumably
         not covered by the scope of Directive 2001/29, would not affect the legislative competence of the Member States, subject to
         other Community law limitations (see Case C‑285/08 Moteurs Leroy Somer [2009] ECR I‑0000, paragraph 31).
      
      86 –	See point 94 of this Opinion.