Belgian system for reasonable compensation of copies for private use contrary to Copyright Directive
12-11-2015 Print this page
Restrictions for (i) reproduction on paper or any kind of photographic or (ii) copies for private use.
Because of differences in the compensation for damages, the term ‘reasonable compensation’ requires a distinction between (i) reproduction by any random user and (ii) private copies without commercial ends on any medium by a natural person.
"43. that Article 5(2)(a) and Article 5(2)(b) of Directive 2001/29 must be interpreted as meaning that, with regard to the phrase ‘fair compensation’ contained in those provisions, it is necessary to draw a distinction according to whether the reproduction on paper or a similar medium effected by the use of any kind of photographic technique or by some other process having similar effects is carried out by any user or by a natural person for private use and for ends that are neither directly nor indirectly commercial.
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).
41. In that regard, in view of the case-law referred to in paragraph 36 above, a situation in which reproductions are made, in the context of the reprography exception, by a natural person for private use and for ends that are neither directly nor indirectly commercial is not comparable, as regards fair compensation, to a situation in which reproductions which, while made in that same context of the reprography exception, are made either by a user other than a natural person, or by a natural person but for a use other than private use or for ends that are directly or indirectly commercial, since the harm suffered by the rightholders in each of those situations is not, as a general rule, identical."
Member state is not authorized 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 authorise benefit, even indirectly, from some of the compensation of which they have been deprived.
"49. 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."
Fair compensation can not be recovered via an undifferentiated system which also covers (i) the copying of sheet music and (ii) which also covers counterfeit reproductions made from unlawful sources.
"64. Accordingly, the answer to the fourth question is that Article 5(2)(a) and Article 5(2)(b) of Directive 2001/29 preclude, in principle, national legislation, such as that at issue in the main proceedings, which introduces an undifferentiated system for recovering fair compensation which also covers the copying of sheet music and that those provisions preclude national legislation which introduces an undifferentiated system for recovering fair compensation which also covers counterfeit reproductions made from unlawful sources."
System that combines, in order to finance the fair compensation payable to rightholders, two forms of numeration namely (i) lump-sum remuneration paid prior to the reproduction operation by the manyfacturer, and (ii) proportional remuneration paid after that reproduction operation and determined solely by mean of a unit price multiplied by the number of copies produced.
"88. It follows from the foregoing 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 introduces a system that combines, in order to finance the fair compensation payable to rightholders, two forms of remuneration, namely, first, lump-sum remuneration paid prior to the reproduction operation by the manufacturer, importer or intra-Community acquirer of devices enabling protected works to be copied, at the time when such devices are put into circulation on national territory, and, second, proportional remuneration paid after that reproduction operation and determined solely by means of a unit price multiplied by the number of copies produced, which is payable by the natural or legal persons who make those copies, in so far as:
– the lump-sum remuneration paid in advance is calculated solely by reference to the speed at which the device concerned is capable of producing copies;
– the proportional remuneration recovered after the fact varies according to whether or not the person liable for payment has cooperated in the recovery of that remuneration;
– the combined system, taken as a whole, does not include mechanisms, in particular for reimbursement, which allow the complementary application of the criterion of actual harm suffered and the criterion of harm established as a lump sum in respect of different categories of users.
75. In particular, the use of the technical capacity of reproduction devices differs depending on whether the person concerned is making copies for public or private use, and whether such copies are made for commercial or other ends."
IPPT20151112, CJEU, Hewlett-Packard v Reprobel
C-572/13 - ECLI:EU:C:2015:750
