Copydan Båndkopi v Nokia Danmark A/S.
Date: 2015-03-05
19. In that regard, it should be recalled that where Member States decide to introduce the exception, provided for in Article 5(2)(b) of Directive 2001/29, to the right of reproduction for copying for private use (‘the private copying exception’) into their national law, they are required, in particular, to provide, pursuant to that provision, for the payment of fair compensation to holders of the exclusive right of reproduction (judgments in Padawan , C‑467/08, EU:C:2010:620, paragraph 30, and Amazon.com International Sales and Others , C‑521/11, EU:C:2013:515, paragraph 19).
20. Since Directive 2001/29 does not provide any further details concerning the various elements of the fair compensation system, the Member States enjoy broad discretion in that regard. It is for the Member States to determine, inter alia, who must pay that compensation and to establish the form, detailed arrangements for collection and the level of compensation (see, to that effect, judgments in Stichting de Thuiskopie , C‑462/09, EU:C:2011:397, paragraph 23, and Amazon.com International Sales and Others , EU:C:2013:515, paragraph 20).
21. That being the case, fair compensation and, therefore, the system on which it is based, as well as the level of compensation, must be linked to the harm resulting for the rightholder from the making of copies for private use (see, to that effect, judgment in Padawan , EU:C:2010:620, paragraphs 40 et 42).
22. As it is the person reproducing a work, for his own private use, without seeking the prior consent of the rightholder concerned who causes harm to the rightholder, in principle, it is for that person to make good that harm by financing the compensation which will be paid to the rightholder (see, to that effect, judgment in Padawan , EU:C:2010:620, paragraph 45, and Amazon.com International Sales and Others , EU:C:2013:515, paragraph 23).
23. The Court has, however, accepted that, given the practical difficulties in identifying private users and obliging them to compensate the holders of the exclusive right of reproduction for the harm caused to them, it is open to the Member States to establish a private copying levy for the purposes of financing fair compensation, chargeable not to the private persons concerned but to those who have the digital reproduction equipment, devices and media and who, on that basis, in law or in fact, make that equipment available to private users or who provide copying services for them. Under such a system, it is the persons having that equipment who must discharge the private copying levy (judgments in Padawan , EU:C:2010:620, paragraph 46, and Amazon.com International Sales and Others , EU:C:2013:515, paragraph 24).
24. In that regard, it is unnecessary to show that natural persons in fact make copies for private purposes with the aid of such equipment. Those persons are rightly presumed to benefit fully from the making available of that equipment, that is to say, they are deemed to take full advantage of the functions associated with that equipment, including copying (see, to that effect, judgment in Padawan , EU:C:2010:620, paragraphs 54 and 55).
25. It follows that if digital reproduction equipment, devices and media are made available to natural person as private users, the simple fact that that equipment is able to make copies is sufficient in itself to justify the application of the private copying levy (see, to that effect, judgment in Padawan , EU:C:2010:620, paragraph 56).
31. It should be noted in that regard that the exceptions provided for in Article 5 of Directive 2001/29 are to be applied in a manner that is consistent with the principle of equal treatment, which is a general principle of EU law, enshrined in Article 20 of the Charter of Fundamental Rights of the European Union (see, with regard to the latter point, judgment in Glatzel , C‑356/12, EU:C:2014:350, paragraph 43).
32. According to the Court’s established case-law, the principle of equal treatment requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified (see, inter alia, judgments in Soukupová , C‑401/11, EU:C:2013:223, paragraph 29, and Sky Italia , C‑234/12, EU:C:2013:496, paragraph 15).
33. It follows that the Member States cannot lay down detailed fair compensation rules which would discriminate, without any justification, between the different categories of economic operators marketing comparable goods covered by the private copying exception or between the different categories of users of protected subject matter.
44. It is also the Court’s case-law that Member States may, under certain conditions, apply the private copying levy indiscriminately with regard to recording media suitable for reproduction, including where the final use of such media does not meet the criteria set out in Article 5(2)(b) of Regulation No 2001/29 (see, to that effect, judgment in Amazon.com International Sales and Others , EU:C:2013:515, paragraph 31).
45. A system for the application of such a levy will be consistent with that provision only if its introduction is justified by practical difficulties and if the persons responsible for payment have a right to reimbursement of the levy where it is not due (see, to that effect, Amazon.com International Sales and Others , EU:C:2013:515, paragraph 31).
46. In that regard, a private copying levy system may be justified, inter alia, by the need to address the fact that it is impossible to identify the final users or the practical difficulties associated with identifying those users or other similar difficulties (see, to that effect, Amazon.com International Sales and Others , EU:C:2013:515, paragraphs 31 and 34).
47. However, it is apparent from the Court’s case-law that, in any event, that levy cannot be applied to the supply of reproduction equipment, devices and media to persons other than natural persons for purposes clearly unrelated to private copying (see, to that effect, judgments in Padawan , EU:C:2010:620, paragraph 52, and Amazon.com International Sales and Others , EU:C:2013:515, paragraph 28).
48. Moreover, with regard to the right to reimbursement of the levy in question, it must be effective and not make it excessively difficult to repay the levy paid in cases falling outside that covered by Article 5(2)(b) of Directive 2001/29 (see, to that effect, Amazon.com International Sales and Others , EU:C:2013:515, paragraphs 31 and 34).
52. Second, the referring court must verify that the scope, the effectiveness, the availability, the public awareness and simplicity of use of the right to reimbursement allow for the correction of any imbalances created by the private copying levy system, in order to respond to the practical difficulties observed (see judgment in Amazon.com International Sales and Others , EU:C:2013:515, paragraph 36).
53. It should be observed in that regard that, as the private copying levy system at issue in the main proceedings permits those responsible for payment to pass on the amount of the levy in the amount charged for the mobile telephones in question and the final user therefore bears the burden of the levy, it is, in principle, consistent with the ‘fair balance’ between the interests of the copyright holders and those of the users of protected subject-matter referred to in recital 31 in the preamble to Directive 2001/29 that only the final purchaser of a mobile telephone should be able to obtain reimbursement of that levy and that reimbursement should be conditional upon the submission of an appropriate application to the organisation responsible for administering the levy.
55. In the light of the foregoing, the answer to Question 6 is that Article 5(2)(b) of Directive 2001/29 must be interpreted as not precluding national legislation which requires payment of the private copying levy by producers and importers who sell mobile telephone memory cards to business customers and are aware that those cards will be sold on by those customers but do not know whether the final purchasers of the cards will be individuals or business customers, on condition that:
– the introduction of such a system is justified by practical difficulties;
– the persons responsible for payment are exempt from the levy if they can establish that they have supplied the mobile telephone memory cards to persons other than natural persons for purposes clearly unrelated to copying for private use, it being understood that the exemption cannot be restricted to the supply of business customers registered with the organisation responsible for administering the levy;
– the system provides for a right to reimbursement of the private copying levy which is effective and does not make it excessively difficult to repay the levy paid and only the final purchaser of such a memory card may obtain reimbursement, by submitting an appropriate application to that organisation.
Question 3
57. In that regard, it should be noted, first, that the objective of Directive 2001/29 is to harmonise only certain aspects of the law on copyright and related rights (judgment in Padawan , EU:C:2010:620, paragraph 35). Second, the general scheme of the directive is circumscribed by a number of its provisions which disclose the intention of the EU legislature to grant a degree of discretion to the Member States in the implementation of the directive, such as Article 5, which sets out a series of exceptions and limitations which the Member States are free to transpose into their national law.
64. It is apparent from paragraphs 24 and 25 above that it is unnecessary to show that the users of such files actually make copies for private use, as such users are rightly presumed to benefit fully from the making available of those files. It follows that if a rightholder allows a natural person to use such files, by making them available to that person, the simple fact that those files may be used for the purpose of reproducing protected works justifies the application of the private copying levy.
65. Accordingly, with regard to the effect on fair compensation of the fact that the rightholder has consented to the use of files containing protected works, the Court has held that where a Member State has decided, pursuant to Article 5(2) of Directive 2001/29, to exclude, from the material scope of that provision, any right for rightholders to authorise reproduction of their works for private use, any authorising act a rightholder may adopt will be devoid of legal effects under the law of that State. Consequently, such an act has no effect on the harm caused to rightholders due to the introduction of the measure depriving them of that right and cannot, therefore, have any bearing on the fair compensation owed, whether it is provided for on a compulsory or an optional basis, under the relevant provision of that directive (see judgment in VG Wort and Others , C‑457/11 to C‑460/11, EU:C:2013:426, paragraph 37).
69. In that regard, the Court has already held that the technological measures to which Article 5(2)(b) of Directive 2001/29 refers are intended to restrict acts which are not authorised by the rightholders, that is to say to ensure the proper application of that provision and thus prevent acts which do not comply with the strict conditions imposed by that provision (judgments in VG Wort and Others , EU:C:2013:426, paragraph 51, and C‑435/12, ACI Adam and Others , EU:C:2014:254, paragraph 43).
70. Moreover, in so far as it is Member States and not rightholders which establish the private copying exception and which authorise, for the purposes of the making of such a copy, such use of protected works or other subject-matter, it is for the Member State which, by the establishment of that exception, has authorised the making of copies for private use to ensure the proper application of that exception, and thus to restrict acts which are not authorised by rightholders (judgments in VG Wort and Others , EU:C:2013:426, paragraphs 52 and 53, and ACI Adam and Others , EU:C:2014:254, paragraph 44).
71. Having regard to the voluntary nature of the technological measures referred to in Article 6 of Directive 2001/29, the Court has held that, even where such a possibility exists, the non-application of those measures cannot have the effect that no fair compensation is due (judgment in VG Wort and Others , EU:C:2013:426, paragraph 57).
72. Nevertheless, it is open to the Member State concerned to make the actual level of compensation owed to rightholders dependent on whether or not such technological measures are applied, so that those rightholders are encouraged to make use of them and thereby voluntarily contribute to the proper application of the private copying exception (judgment in VG Wort and Others , EU:C:2013:426, paragraph 58).
75. The Court has already ruled that that directive precludes national legislation which does not distinguish the situation in which the source from which a reproduction for private use is made is lawful from that in which that source is unlawful (see, to that, effect, ACI Adam and Others , EU:C:2014:254, paragraph 58).
76. In that regard, the Court has held that the need for a restrictive interpretation of Article 5(2)(b) of Directive 2001/29 means that that provision cannot be understood as requiring, beyond the limitation which is provided for expressly, copyright holders to tolerate infringements of their rights which may accompany the making of copies for private use (see, to that effect, ACI Adam and Others , EU:C:2014:254, paragraph 31).
77. The Court has also stated that a private copying levy system with characteristics such as that at issue in the main proceedings which does not, as regards the calculation of the amount of fair compensation payable to its recipients, distinguish the situation in which the source from which a reproduction for private use has been made is lawful from that in which that source is unlawful, does not respect the fair balance to be struck between the interests of the copyright holders and those of the users of protected subject matter, since, under such a system, all the users who purchase equipment, devices or media subject to that levy are indirectly penalised (see, to that effect, judgment in ACI Adam and Others , EU:C:2014:254, paragraphs 54 to 56).
78. By bearing the burden of the levy, which is determined regardless of whether the source from which such reproductions are made is lawful or unlawful, those users inevitably contribute towards the compensation for the harm caused by reproductions for private use made from an unlawful source, which are not permitted by Directive 2001/29, and are thus led to assume an additional, non-negligible cost in order to be able to make the copies for private use covered by the exception provided for by Article 5(2)(b) of that directive (see judgment in ACI Adam and Others , EU:C:2014:254, paragraph 56).
82. With regard, first, to the subject matter of the reproduction, it should be noted that that provision lays down an exception to the exclusive right of a rightholder to authorise or prohibit the reproduction of the work in question. That necessarily presupposes that the subject matter of the reproduction covered by that provisions is a protected work, not a counterfeited or pirated work (see, to that effect, judgment in ACI Adam and Others , EU:C:2014:254, paragraph 58).
87. It should be noted, first, that the exception provided for in Article 5(2)(b) of Directive 2001/29 must be interpreted restrictively, so that it cannot give rise to an interpretation going beyond the cases expressly envisaged (see, by analogy, judgments in ACI Adam and Others , EU:C:2014:254, paragraph 23, and Melzer , C‑228/11, EU:C:2013:305, paragraph 24).
88. Second, the objective of Directive 2001/29 is to harmonise only certain aspects of the law on copyright (judgment in Padawan , EU:C:2010:620, paragraph 35). As it did not mention in that directive the characteristics or specific features referred to at paragraph 86 above, the EU legislature did not consider these to be relevant, in the light of the objective which it pursued by its measure of partial harmonisation.
90. In those circumstances, contrary to what is claimed by the European Commission, Article 5(2)(b) of Directive 2001/29 should not be read in the light of Article 5(5) of the directive, as the latter provision is not intended either to affect the substantive content of provisions falling within the scope of Article 5(2) of that directive or, inter alia, to extend the scope of the different exceptions and limitations provided for therein (see judgment in ACI Adam and Others , EU:C:2014:254, paragraph 26).
93. According to the Court’s settled case-law, where a national court does not provide to the Court the factual or legal material necessary to enable it to give a useful answer to the question submitted, that question must be rejected as inadmissible (see, to that effect, judgment in Belvedere Costruzioni , C‑500/10, EU:C:2012:186, paragraph 16, and order in Stefan , C‑329/13, EU:C:2014:815, paragraph 24).