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Case C-435/12 ACI Adam BV and Others v Stichting de Thuiskopie, Stichting Onderhandelingen Thuiskopie vergoeding
Directive 2001/29 (the InfoSoc Directive) provides for member states to implement various copyright exceptions. This case concerns the exception that allows personal copying for private use which means that such copying would not be deemed copyright infringement. Exceptions must comply with the ‘three step test’ contained in the InfoSoc Directive. Simply put that means they must only apply in special cases, must not conflict with the normal exploitation of the copyright work and must not unreasonably prejudice the legitimate interests of copyright owners.
Member states who introduce exceptions are required to provide for the payment of ‘fair compensation’ to copyright holders to compensate them for use of their protected works.
ACI Adam and others imported and manufactured devices (such as blank CDs) used for reproducing copyright works. They are obliged, under the ‘fair compensation’ requirements, to pay a private copying levy to Stichting de Thusiskopie, a Dutch collecting society. The levy was set at a rate that took into account harm suffered as a result of reproductions made from both lawful and (more eye catchingly) unlawful sources.
The key question was whether the levy should have included the unlawful element.
Unsurprisingly, perhaps, the CJEU ruled that in the interests of maintaining a fair balance between the rights and
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