Sonja Lučić, LLD*
THE RIGHT OF THE AUTHOR TO A FAIR COMPENSATION IN THE EVENT OF REPRODUCTION COPYRIGHT WORK FOR PRIVATE USE
Summary
On 11 July 2013, the Court of Justice of the EU (CJEU) handed down its judgment in Case C-521/11 Amazon v Austro-Mechana. The case concerned the 'fair compensation' to be paid to authors of copyrighted works (such as music, books and films) through a private copying levy on the first sale of recording media such as blank CDs and DVDs. The CJEU was asked by the Austrian Supreme Court whether it is permitted under EU Law for a collective management organisation (CMO) to ask for the payment of levies on recording media such as MP3 players or blank CDs. The case opposed the Austrian CMO Austro-Mechana to Amazon.com who argued that a general “blank cassette levy” was in contradiction to EU Law. Contrary to what was alleged by Amazon.com the Court found that the existence of a general levy was not incompatible with EU Law as long as there is also a system of reimbursement for instance upon re-export of the device or media that is levied. The Court also stated that a system where part of the levy is not transferred directly to the rightholder but goes to social and cultural institutions is acceptable, provided the rightholders benefit from it and the income is shared among eligible rightholders on a non-discriminatory basis. Finally, the Court considered that the payment of a blank cassette levy in another Member State should not free the retailer from paying it in other Member States.
The judgment in Copydan overall tackles a breadth of issues related to private copying and levies. It does not depart from previous decisions such as VG Wort and ACI Adam. Yet, time will tell whether the Court will follow the same train of thought in pending cases, or whether it will redefine the nebulous concepts of unlawful sources and third party devices used for copying, which were not adequately addressed in Copydan.
The case C 572/13 pertains to the Belgian reprography scheme. The CJEU interprets the 2001/29 Copyright Directive answering a series of preliminary questions referred by the Court of Appeal of Brussels. The Court clearly acknowledges the right of authors and other ‘rightholders’ to be remunerated for certain uses of their works allowed under an exception in national legislation. It further ruled that publishers are not rightholders in the sense of article 5.2a and b of the 2001 Copyright Directive. The Court says that, as a result, publishers cannot suffer harm and thus are not entitled to compensation on the basis of the Directive. Any compensation or remuneration provided to publishers at member state level must not affect the fair compensation, which is due to authors under article 5.2.a and b of the Directive. It is evident from the ruling that the European copyright framework in the field of both reprography and private copying in the text and image sector is in urgent need of clarification. In this sense, the International Federation of Reproduction Rights Organisations (IFRRO) called upon the European Commission and the European Parliament to review articles 2, 5.2a and 5.2b of the Directive, with an aim of maintaining fair and adequate compensation for both authors and publishers for usages of their works and publications made under said exceptions. The review should further aim at creating a robust legal framework.
Key words: Copyright and related rights; reproduction right; exceptions and limitations; fair compensation; Directive 2001/29EC.