Hewlett-Packard Belgium SPRL v Reprobel SCRL.
Date: 2015-11-12
24. In that regard, according to the settled case-law of the Court of Justice, in the context of the cooperation between it and the national courts provided for by Article 267 TFEU, it is solely for the national court before which a dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine, in the light of the particular circumstances of the case, 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. Consequently, where the questions submitted concern the interpretation of EU law, the Court is, in principle, bound to give a ruling (judgment in Padawan , C‑467/08, EU:C:2010:620, paragraph 21).
25. Given that questions concerning EU law enjoy a presumption of relevance, the Court may refuse to rule on a question referred by a national court only where it is quite obvious that the interpretation of EU law that is sought is unrelated to the actual facts of the main action or its purpose, where the problem is hypothetical, 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 (judgment in Blanco Pérez and Chao Gómez , C‑570/07 and C‑571/07, EU:C:2010:300, paragraph 36 and the case-law cited).
35. With regard to the phrase ‘fair compensation’, it should be noted, as a preliminary point, that the Court has previously held that the concept of ‘fair compensation’, within the meaning of Article 5(2)(b) of Directive 2001/29, is an autonomous concept of EU law which must therefore be interpreted uniformly in all the Member States that have introduced a private copying exception (judgment in Padawan , C‑467/08, EU:C:2010:620, paragraph 37).
36. The Court has also held that fair compensation must necessarily be calculated on the basis of the criterion of the harm caused to authors of protected works. It is apparent from recitals 35 and 38 in the preamble to Directive 2001/29 that the notion and level of fair compensation are linked to the harm resulting for the author from the reproduction of his protected work without his authorisation. From that perspective, fair compensation must be regarded as recompense for the harm suffered by that author (see, to that effect, judgment in Padawan , C‑467/08, EU:C:2010:620, paragraphs 40 and 42).
37. It is true that the case which gave rise to the judgment in Padawan  (C‑467/08, EU:C:2010:620) specifically concerned Article 5(2)(b) of Directive 2001/29. However, in that judgment, the Court interpreted the concept of fair compensation using, inter alia, arguments based on recital 35 in the preamble to that directive which are valid for all the exceptions laid down in Article 5 thereof in respect of which fair compensation is required. The case-law laid down in that judgment, as mentioned in paragraph 36 above, must, therefore, be regarded as being equally relevant, mutatis mutandis , for the interpretation of Article 5(2)(a) of that directive (see, to that effect, VG Wort and Others , C‑457/11 to C‑460/11, EU:C:2013:426, paragraphs 73 and 77).
38. That finding is supported by the argument based on the requirement that Member States be consistent in the application of the exceptions which bind them, as set out in the last sentence of recital 32 in the preamble to Directive 2001/29.
39. Consistency in the implementation of those exceptions, which partially overlap, could not be ensured if the Member States were free to determine the way in which fair compensation ought to be fixed for reproductions made under the same conditions, solely depending on whether they have chosen to make provision for only one of those exceptions or for both of them (either simultaneously or successively).
47. However, publishers are not among the reproduction rightholders listed in Article 2 of Directive 2001/29.
48. Since, first, the fair compensation which is payable under the reprography exception and the private copying exception is intended, as is apparent from paragraph 36 above, to compensate for the harm suffered by rightholders as a result of the reproduction of their works without their authorisation and, second, publishers are not exclusive reproduction rightholders pursuant to Article 2 of Directive 2001/29, publishers do not suffer any harm for the purposes of those two exceptions. They cannot, therefore, receive compensation under those exceptions when such receipt would have the result of depriving reproduction rightholders of all or part of the fair compensation to which they are entitled under those exceptions.
49. It follows from the foregoing that the answer to the third question is that Article 5(2)(a) and Article 5(2)(b) of Directive 2001/29 preclude national legislation, such as that at issue in the main proceedings, which authorises the Member State in question to allocate a part of the fair compensation payable to rightholders to the publishers of works created by authors, those publishers being under no obligation to ensure that the authors benefit, even indirectly, from some of the compensation of which they have been deprived.
The fourth question
57. Next, concerning counterfeit reproductions, the Court has previously held that Article 5(2)(b) of Directive 2001/29 must be interpreted as not covering the case of private copies made from an unlawful source (judgment in ACI Adam and Others , C‑435/12, EU:C:2014:254, paragraph 41).
58. According to the Court, although Article 5(2)(b) of Directive 2001/29 must be understood as meaning that the private copying exception admittedly prohibits copyright holders from relying on their exclusive right to authorise or prohibit reproductions with regard to persons who make private copies of their works, that provision cannot be understood as requiring, beyond that limitation which is provided for expressly, copyright holders to tolerate infringements of their rights which may accompany the making of private copies (see judgment in ACI Adam and Others , C‑435/12, EU:C:2014:254, paragraph 31).
59. The Court has also observed that it is apparent from recital 22 in the preamble to Directive 2001/29 that the objective of proper support for the dissemination of culture must not be achieved by sacrificing strict protection of rights or by tolerating illegal forms of distribution of counterfeited or pirated works (judgment in ACI Adam and Others , C‑435/12, EU:C:2014:254, paragraph 36) and that, when it is applied, national legislation which does not draw a distinction according to whether the source from which a reproduction for private use is made is lawful or unlawful may infringe certain conditions laid down by Article 5(5) of Directive 2001/29 (judgment in ACI Adam and Others , C‑435/12, EU:C:2014:254, paragraph 38).
60. First, to accept that such reproductions may be made from an unlawful source would encourage the circulation of counterfeited or pirated works, thus inevitably reducing the volume of sales or of other lawful transactions relating to the protected works, with the result that a normal exploitation of those works would be adversely affected (judgment in ACI Adam and Others , C‑435/12, EU:C:2014:254, paragraph 39).
61. Secondly, it would be likely, having regard to the finding made in the preceding paragraph, unreasonably to prejudice copyright holders (judgment in ACI Adam and Others , C‑435/12, EU:C:2014:254, paragraph 40).
69. Accordingly, first, fair compensation is, in principle, intended to compensate for the harm suffered resulting from the copies actually produced (‘the criterion of actual harm suffered’) and, second, in principle, it is for the persons who have made the reproductions to make good the harm related to those reproductions by financing the compensation which will be paid to the rightholder (see judgment in Padawan , C‑467/08, EU:C:2010:620, paragraph 45).
70. However, the Court has acknowledged that, given the practical difficulties in identifying users and obliging them to compensate rightholders for the harm caused to them, it is open to the Member States to establish a levy chargeable not to the users concerned but to the persons who have the digital reproduction equipment, devices and media and who, on that basis, in law or in fact, make that equipment available to those users or who provide copying services for them and who are able to pass on the cost of the levy to the users (see, to that effect, judgment in Padawan , C‑467/08, EU:C:2010:620, paragraphs 46 and 48).
72. In that regard, the persons to whom such devices are made available are rightly presumed to benefit fully from the making available of those devices, that is to say, that they are deemed to take full advantage of the functions associated therewith, including copying. It follows that the fact that those devices are capable of producing copies is sufficient in itself to justify the application of the levy to the persons concerned (see, to that effect, judgment in Padawan , C‑467/08, EU:C:2010:620, paragraphs 55 and 56).
85. In order to be able to satisfy the requirement mentioned in the preceding paragraph, a system, such as that at issue in the main proceedings, which combines lump-sum remuneration fixed in advance and proportional remuneration fixed after the fact must contain mechanisms, in particular for reimbursement, which are designed to correct any situation where ‘overcompensation’ occurs to the detriment of particular categories of users (see, by analogy, judgment in Amazon.com International Sales and Others , C‑521/11, EU:C:2013:515, paragraphs 30 and 31).
86. Such ‘overcompensation’ would not be compatible with the requirement, set out in recital 31 in the preamble to Directive 2001/29, that a fair balance be safeguarded between the rightholders and the users of protected subject-matter.