Verwertungsgesellschaft Wort (VG Wort) v Kyocera and Others (C‑457/11) and Canon Deutschland GmbH (C‑458/11) and Fujitsu Technology Solutions GmbH (C‑459/11) and Hewlett-Packard GmbH (C‑460/11) v Verwertungsgesellschaft Wort (VG Wort).
Date: 2013-06-27
25. According to settled case-law, when national courts apply domestic law they are bound to interpret it, so far as possible, in the light of the wording and the purpose of the directive concerned in order to achieve the result sought by the directive and consequently to comply with the third paragraph of Article 288 TFEU. This obligation to interpret national law in conformity with European Union law is inherent in the system of the FEU Treaty, since it permits national courts, for the matters within their jurisdiction, to ensure the full effectiveness of European Union law when they determine the disputes before them (Case C‑282/10 Dominguez  [2012] ECR I‑0000, paragraph 24 and the case-law cited).
26. The general obligation owed by national courts to interpret domestic law in conformity with the directive exists only once the period for its transposition has expired (see, to that effect, Case C‑212/04 Adeneler and Others  [2006] ECR I‑6057, paragraph 115).
31. In that regard, it should first of all be borne in mind that the Court has already held, in relation specifically to the private copying exception, that the purpose of fair compensation is to compensate authors for private copying, without their authorisation, of their protected works, meaning that it must be regarded as recompense for the harm suffered by authors, resulting from such a copy which is not authorised by them (see, to that effect, Case C‑467/08 Padawan  [2010] ECR I‑10055, paragraphs 39 and 40).
37. Where a Member State has decided, pursuant to a provision in Article 5(2) and (3) of Directive 2001/29, to exclude, from the material scope of that provision, any right for the rightholders to authorise reproduction of their protected works or other subject-matter, any authorising act the rightholders may adopt is devoid of legal effects under the law of that State. Consequently, such an act has no effect on the harm caused to the rightholders due to the introduction of the relevant 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.
44. In that regard, it should be recalled that, according to settled case-law, questions on the interpretation of European Union law referred by a national court in the factual and legislative context which that court is responsible for defining, the accuracy of which is not a matter for the Court to determine, 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 Community law that is sought bears no relation 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 (Case C‑45/09 Rosenbladt  [2010] ECR I‑9391, paragraph 33, and Case C‑463/11 L [2013] ECR I‑0000, paragraph 28).
46. Moreover, the objection raised by Fujitsu, alleging that that provision is inapplicable to the cases in the main proceedings, does not relate to the admissibility of the fourth question but concerns its substance.
51. It follows that the ‘technological measures’ to which the wording of Article 5(2)(b) of Directive 2001/29 refers are technologies, devices or components intended to restrict acts which are not authorised by the rightholders, that is to say to ensure the proper application of that provision, which constitutes a restriction on copyright or rights related to copyright, and thus to prevent acts which do not comply with the strict conditions imposed by that provision.
52. It is, however, Member States and not the 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.
53. Consequently it is for the Member State which, by the establishment of that exception, has authorised the making of the private copy to ensure the proper application of that exception, and thus to restrict acts which are not authorised by the rightholders.
57. Having regard to the voluntary nature of those technological measures, even where such a possibility exists, the non-application of those measures cannot have the effect that no fair compensation is due.
58. 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.
71. That interpretation is supported by recitals 2 and 5 in the preamble to Directive 2001/29, according to which the aim of Directive 2001/29 is to create a general and flexible framework at European Union level in order to foster the development of the information society and to adapt and supplement the current law on copyright and related rights in order to respond to technological development, which has created new forms of exploitation of protected works (Case C‑283/10 Circul Globus Bucureşti  [2011] ECR I‑0000, paragraph 38).
73. In the second place, as regards the question of which person must be considered as owing the fair compensation, in the context of such a process involving the combination of several devices, some of which have an analogue function and others a digital function, it is appropriate to recall at the outset the case-law of the Court, which admittedly relates to the private copying exception but may none the less be applied by analogy to the reproduction on paper or similar medium exception, provided that the fundamental right to equal treatment under Article 20 of the Charter is respected.
74. As regards the identification of the person who must be considered as owing the fair compensation, the Court has held that the provisions of Directive 2001/29 do not expressly address the question of who owes that compensation, so that the Member States enjoy a broad discretion in that regard (see, to that effect, Case C‑462/09 Stichting de Thuiskopie [2011] ECR I‑5331, paragraph 23).
76. The Court has however accepted that, given the practical difficulties connected with such a system of fair compensation, it is open to the Member States to go back to the stages before the actual copying and put in place a ‘private copying levy’, for the purposes of financing fair compensation, chargeable to persons who are in possession of the reproduction equipment, devices and mediums and, on that basis, in law or in fact, make those items available to persons making copies or provide copying services for them, since such a system enables the persons liable to pay compensation to pass on the cost of the levy to private users, and the latter therefore assume the burden of the private copying levy (see, to that effect, Padawan , paragraphs 46 and 49, and Stichting de Thuiskopie , paragraphs 27 and 28).
77. Applying that case-law mutatis mutandis to the reproduction on paper or similar medium exception, it is, in principle, for the person who has made such a reproduction to finance the compensation which will be paid to the rightholders. However, Member States are free, given the practical difficulties encountered, to put in place, where appropriate, a levy chargeable to the persons in possession of the equipment on which the reproduction has been made.