Case C-462/09

Stichting de Thuiskopie

v

Opus Supplies Deutschland GmbH and Others

(Reference for a preliminary ruling from the Hoge Raad der Nederlanden)

(Approximation of laws – Copyright and related rights – Directive 2001/29/EC – Reproduction right – Exceptions and limitations – Exception of copying for private use – Article 5(2)(b) and (5) – Fair compensation – Person responsible for paying the levy earmarked for financing of that compensation – Distance selling between two persons resident in different Member States)

Summary of the Judgment

1.        Approximation of laws – Copyright and related rights – Directive 2001/29 – Harmonisation of certain aspects of copyright and related rights in the information society – Reproduction right – Private copying exception – Fair compensation – Person responsible for paying levy

(European Parliament and Council Directive 2001/29, Art. 5(2)(b) and (5))

2.        Approximation of laws – Copyright and related rights – Directive 2001/29 –Harmonisation of certain aspects of copyright and related rights in the information society – Reproduction right – Private copying exception

(European Parliament and Council Directive 2001/29, Art. 5(2)(b) and (5))

1.        On a proper construction of Directive 2001/29 on the harmonisation of certain aspects of copyright and related rights in the information society, in particular Article 5(2)(b) and (5) thereof, the final user who carries out, on a private basis, the reproduction of a protected work must, in principle, be regarded as the person responsible for paying the fair compensation provided for in Article 5(2)(b). However, given the practical difficulties in identifying private users and obliging them to compensate rightholders for the harm caused to them, it is open to the Member States to establish a private copying levy chargeable to the persons who make reproduction equipment, devices and media available to that final user, since they are able to pass on the amount of that levy in the price paid by the final user for that service.

(see paras 27, 29, operative part 1)

2.        Directive 2001/29 on the harmonisation of certain aspects of copyright and related rights in the information society, in particular Article 5(2)(b) and (5) thereof, must be interpreted as meaning that it is for the Member State which has introduced a system of private copying levies chargeable to the manufacturer or importer of media for reproduction of protected works, and in the territory of which the harm caused to authors by the use for private purposes of their work by purchasers who reside there occurs, to ensure that those authors actually receive the fair compensation intended to compensate them for that harm. In that regard, the mere fact that the commercial seller of reproduction equipment, devices and media is established in a Member State other than that in which the purchasers reside has no bearing on that obligation to achieve a certain result. It is for the national court, when it is impossible to ensure recovery of the fair compensation from the purchasers, to interpret national law in order to allow recovery of that compensation from the person responsible for payment acting on a commercial basis.

(see para. 41, operative part 2)