CJEU on rebutting the presumption of mandatory fair compensation for the supply of storage media to non-private purchasers

The CJEU held that a national remuneration scheme imposing a levy on storage media sold to professional purchasers is compatible with the InfoSoc Directive, provided that a rebuttable presumption exists. Producers, importers, or distributors may be required to pay fair compensation unless they demonstrate that the media will not, or will only to a minimal extent, be used by natural persons for private copying. The key point is that a national scheme is permissible as long as the presumption of use for private copying can be rebutted by evidence that the harm to rightholders is minimal.

COPYRIGHT

In the main proceedings, the applicant, Zentralstelle für private Überspielungsrechte (ZPÜ), brought an action for damages, together with a procedure for the assessment of damages, against the defendant, bluechip Computer Aktiengesellschaft, on account of the marketing of personal computers (PCs), notebooks, and workstations equipped with an internal hard disk drive.

According to the applicant, the defendant was required to pay a levy to finance the fair compensation arising from the exception to the reproduction right for copies made for private use.

At first instance, it was held that, under national law, a levy is indeed payable in respect of the devices and storage media placed on the market by the defendant. The defendant cannot rely on the fact that the vast majority of the devices are not sold to private end users and are therefore not used, to any significant extent, for private copying. According to the court of first instance, when devices and storage media are made available and are not clearly intended for purposes other than private copying, there is a presumption that the devices and storage media will be used to make permissible copies subject to remuneration. This presumption applies when devices are made available to natural persons and when storage media are made available to a commercial purchaser or a legal person. The presumption can be rebutted only by proving that, by means of those devices, reproductions have been made, or will, in the normal course of events, be made, only to a limited extent.

Preliminary question:

Is it compatible with Article 5(2)(b) of Directive [2001/29] for national legislation to require manufacturers, importers or traders who sell storage media to commercial end customers (legal persons or natural persons who – in a manner discernible by the manufacturer, importer or trader – place orders as end users for commercial purposes) to pay remuneration to finance the fair compensation for the exception to the reproduction right in respect of reproduction for private use, unless such manufacturers, importers or traders prove, in accordance with the rules of national law, that reproductions of a work made with the aid of those devices were in fact made, at the very most, on a small scale by a natural person for private use on any medium, or are made in the normal course of events?

Court rules:

Article 5(2)(b) of [InfoSoc Directive] must be interpreted as not precluding a national rule according to which manufacturers, importers and traders of storage media that may be used for making reproductions are obliged to pay the fair compensation laid down in that provision where those media are sold to commercial end users, except where those manufacturers, importers or traders establish that those media are not used by natural persons in order to make reproductions for private use and for ends that are neither directly nor indirectly commercial, or are used in such a way solely on a scale regarded as not causing more than minimal harm to rightholders.

IPPT-version will follow anytime soon
ECLI:EU:C:2026:13