Obligation to pay fair compensation may not be excluded because of payment of a comparable levy in another Member State

COPYRIGHT

System of indiscriminate application of private copying levy on placement on the market for commercial purposes under a pecuniary claim by all natural persons, with reimbursement permitted in case use of media does not meet levy criteria, where justified as a result of practical difficulties and the right to reimbursement is effective

"37 In the light of the foregoing observations, the answer to the first question is that Article 5(2) (b) of Directive 2001/29 must be interpreted as meaning that it does not preclude legislation of a Member State which indiscriminately applies a private copying levy on the first placing on the market in national territory, for commercial purposes and for consideration, of recording media suitable for reproduction, while at the same time providing for a right to reimbursement of the levies paid in the event that the final use of those media does not meet the criteria set out in that provision, where, having regard to the particular circumstances of each national system and the limits imposed by Directive 2001/29, which it is for the national court to verify, practical difficulties justify such a system of financing fair compensation and the right to reimbursement is effective and does not make repayment of the levies paid excessively difficult."

Rebuttable presumption of private use by natural persons is permitted under those circumstances

"45. [...] in the context of a system of financing of fair compensation under that provision by means of a private copying levy to be borne by persons who first place recording media suitable for reproduction on the market in the territory of the Member State concerned for commercial purposes and for consideration, that provision does not preclude the establishment by that Member State of a rebuttable presumption of private use of such media where they are marketed to natural persons, where the practical difficulties of determining whether the purpose of the use of the media in question is private justify the establishment of such a presumption and provided that the presumption established does not result in the imposition of the private copying levy in cases where the final use of those media clearly does not fall within the case referred to in that provision."

System whereby half of funds received shall be paid to social and cultural institutions set up for the benefit of those entitled, is permitted

"55. In the light of the foregoing observations, the answer to the third question is that Article 5 (2)(b) of Directive 2001/29 must be interpreted as meaning that the right to fair compensation under that provision or the private copying levy intended to finance that compensation cannot be excluded by reason of the fact that half of the funds received by way of such compensation or levy is paid, not directly to those entitled to such compensation, but to social and cultural institutions set up for the benefit of those entitled, provided that those social and cultural establishments actually benefit those entitled and the detailed arrangements for the operation of such establishments are not discriminatory, which it is for the national court to verify."

Payment of comparable compensation in another Member State shall not exclude any obligation to pay for financing fair compensation for private use

"66. In the light of the foregoing observations, the answer to the fourth question is that Article 5 (2)(b) of Directive 2001/29 must be interpreted as meaning that the obligation undertaken by a Member State to pay, on the placing on the market, for commercial purposes and for consideration, of recording media suitable for reproduction, a private copying levy intended to finance the fair compensation under that provision may not be excluded by reason of the fact that a comparable levy has already been paid in another Member State."

IPPT20130711, CJEU, Amazon v Austro-Mechana

C-521/11 - ECLI:EU:C:2013:515