Lawyer
General Pedro Cruz Villalón presented yesterday, January 9, his conclusions in
a matter in which, once again, greater specification of the scope of
application of the exception contained in article 5.2.b) of the Directive 2001/29, the call “private copy” limit (case C-435/12) (in French).
General Pedro Cruz Villalón presented yesterday, January 9, his conclusions in
a matter in which, once again, greater specification of the scope of
application of the exception contained in article 5.2.b) of the Directive 2001/29, the call “private copy” limit (case C-435/12) (in French).
The defendant
in the main proceedings is the Thuiskopie Stichting, Dutch entity
responsible for the collection and distribution of equitable compensation derived from
the private copy provided for in the aforementioned article of the Directive. The plaintiffs
There are several companies dedicated to the manufacture and import of supports
intended for the reproduction of works and, therefore, obliged to pay the
compensation.
in the main proceedings is the Thuiskopie Stichting, Dutch entity
responsible for the collection and distribution of equitable compensation derived from
the private copy provided for in the aforementioned article of the Directive. The plaintiffs
There are several companies dedicated to the manufacture and import of supports
intended for the reproduction of works and, therefore, obliged to pay the
compensation.
The question
main object of the dispute, and which is brought before the Court of Justice in
form of preliminary question is If the exception of article 5.2.b) of the
Directive may also be applied to copies of works obtained through
from illicit sources and whether, consequently, these copies should be
computed when calculating the compensation to be received by the
rights holders. Unlike other legislation, such as
Spanish, the Dutch Copyright Law does not specify that the exception
should apply only to reproductions of works to which
accessed legally. Nor does the text of the Directive make this distinction.
main object of the dispute, and which is brought before the Court of Justice in
form of preliminary question is If the exception of article 5.2.b) of the
Directive may also be applied to copies of works obtained through
from illicit sources and whether, consequently, these copies should be
computed when calculating the compensation to be received by the
rights holders. Unlike other legislation, such as
Spanish, the Dutch Copyright Law does not specify that the exception
should apply only to reproductions of works to which
accessed legally. Nor does the text of the Directive make this distinction.
The management entity
The Dutch company considers, fundamentally, that since there are no technological measures
effective measures that prevent the reproduction of works, equitable remuneration
provided for rights holders for making private copies
should also count those carried out from sources to which
has not been accessed legally, especially via the Internet. This way
compensation would be achieved in a real and effective manner for the damage suffered by the
rights holders as a consequence of the massive availability of
works on the network.
The Dutch company considers, fundamentally, that since there are no technological measures
effective measures that prevent the reproduction of works, equitable remuneration
provided for rights holders for making private copies
should also count those carried out from sources to which
has not been accessed legally, especially via the Internet. This way
compensation would be achieved in a real and effective manner for the damage suffered by the
rights holders as a consequence of the massive availability of
works on the network.
The opinion
of the Advocate General points, however, in the opposite direction. Just like
affirms Pedro Cruz Villalón, without prejudice to the fact that a regulation such as the one
proposed by the defendant entity could constitute a legitimate response
and appropriate to violations of copyright on the Internet, it is
indisputable that the basis of the private copy exception is not the
to compensate the damages caused to the owners by this type of
piracy.
of the Advocate General points, however, in the opposite direction. Just like
affirms Pedro Cruz Villalón, without prejudice to the fact that a regulation such as the one
proposed by the defendant entity could constitute a legitimate response
and appropriate to violations of copyright on the Internet, it is
indisputable that the basis of the private copy exception is not the
to compensate the damages caused to the owners by this type of
piracy.
Private copying, as an exception to copyright, must be
interpreted in accordance with the three-step rule contained in article 5.5
of the Directive and, consequently, must be subject to interpretation
strict. It is not possible, therefore, in this way, to expand the scope of application of the
exception to illicit copies, since this would mean legalizing a practice that,
From any point of view, it is illegal, no matter how much it allows the
holders obtain subsequent compensation. From this it is derived
inevitably that compensation for private copying must take into account
only reproductions made from works to which
has legally accessed.
interpreted in accordance with the three-step rule contained in article 5.5
of the Directive and, consequently, must be subject to interpretation
strict. It is not possible, therefore, in this way, to expand the scope of application of the
exception to illicit copies, since this would mean legalizing a practice that,
From any point of view, it is illegal, no matter how much it allows the
holders obtain subsequent compensation. From this it is derived
inevitably that compensation for private copying must take into account
only reproductions made from works to which
has legally accessed.
They turn out
These conclusions are also interesting, As far as Spain is concerned, because in
They question again the new system implemented by the Royal Decree 1657 / 2012, of December 7, which establishes a compensation system
equitably charged to the general budgets of the State. As stated
the Advocate General in Recital 43 of the Conclusions, The compensation
must be financed by the person causing the damage, that is, for the
natural persons who make copies for their private use. It seems obvious
that a system like ours fits with difficulties within this line
interpretative.
These conclusions are also interesting, As far as Spain is concerned, because in
They question again the new system implemented by the Royal Decree 1657 / 2012, of December 7, which establishes a compensation system
equitably charged to the general budgets of the State. As stated
the Advocate General in Recital 43 of the Conclusions, The compensation
must be financed by the person causing the damage, that is, for the
natural persons who make copies for their private use. It seems obvious
that a system like ours fits with difficulties within this line
interpretative.
Author Patricia Mariscal
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