How fair is fair compensation for private copying

Philippe Péters, partner, and Pierre-Yves Thoumsin, associate at NautaDutilh, outline the Advocate General’s (AG) opinion (not released in English) on fair compensation to rights holders for the act of private copying and examine the opinion in Hewlett Packard Belgium v Reprobel SCRL: C-572/13

What was the background to this referral to the CJEU?

This case was referred by the Brussels Court of Appeal in the context of a dispute between the manufacturers and importers of multifunction printers and the collection agency responsible for ensuring fair compensation to rights holders for reproductions made with the printers.

The manufacturers and the collection agency disagreed on the rate of fair compensation applicable to such multifunction devices used to print, scan, copy and fax documents.

What are the key legal issues highlighted by this referral?

The four questions referred to the Court of Justice of the European Union (CJEU) related to the interpretation of Directive 2001/29/EC, art 5(2)(a)(b) on the harmonisation of certain aspects of copyright and related rights in the information society (InfoSoc Directive).

The four questions were:

  • Is there an obligation for member states to set a different amount of fair compensation, depending on whether the multifunction printers are used for commercial or private purposes?
  • Are member states authorised to fix the fair compensation payable to rights holders in the form of both a lump-sum payment made by the manufacturer of the device and a proportional payment made by the person making reproductions with the device?
  • Are member states authorised to allocate a portion of the fair compensation to the publishers of works created by authors, with no obligation for the publishers to ensure that the authors benefit from some of this compensation?
  • Are member states authorised to fix fair compensation for the copying of sheet music and counterfeit reproductions?

What was the Advocate General’s opinion on the four questions referred?

The AG’s opinion on the four questions described above is the following:

  • There is no obligation for member states to fix fair compensation which differs depending on the status of the person using the multifunction printer and/or the purpose for which it is used. Member states are nevertheless authorised to fix different forms of compensation, provided it remains proportional to the loss suffered by the rights holders and is based on objective, transparent and non-discriminatory criteria.
  • Member states are authorised to fix fair compensation consisting of both a lump sum to be shared among the manufacturers and proportionate compensation (based on the number of reproductions made using the device) for users, provided the rates are determined on a non-discriminatory basis with reference to objective, rational and proportionate criteria.
  • Member states are, however, not authorised to impose a successive and cumulative collection, from the same person, of both lump-sum and use-based compensation, without duly taking into account payment of the lump-sum compensation or without providing for the possibility to obtain reimbursement or deduction of the lump-sum compensation.
  • Member states are not authorised to allocate compensation to publishers for works created by authors without any obligation for the publishers to remit a share of this compensation to the authors. Member states are, however, authorised to determine specific compensation for publishers, as long as it is not detrimental to the fair compensation of authors.
  • Member states are not authorised to fix fair compensation for the copying of sheet music and counterfeit reproductions.

The UK’s personal copying exception doesn’t provide for fair compensation: what messages can be drawn from the AG’s opinion that may apply to this position

The AG repeatedly stated that the application of the exceptions provided for by the InfoSoc Directive, art 5(2)(b) is optional for member states. Nevertheless, he stressed that once an exception has been implemented in a member state, it is subject to the self-standing concept of fair compensation, which must be interpreted in accordance with the CJEU’s case law.

Interviewed by Stephanie Boyer.

The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.

Relevant Articles
Area of Interest