Case C‑521/11

Amazon.com International Sales Inc. and Others

v

Austro-Mechana Gesellschaft zur Wahrnehmung mechanisch-musikalischer Urheberrechte Gesellschaft mbH

(Request for a preliminary ruling from the Oberster Gerichtshof)

(Approximation of laws — Intellectual property — Copyright and related rights — Exclusive right of reproduction — Directive 2001/29/EC — Article 5(2)(b) — Fair compensation — Indiscriminate application with a possible right to recovery of the private copying levy intended to finance compensation — Payment of the revenue collected in part to rightholders and in part to social or cultural institutions — Double payment of the private copying levy in the context of a cross-border transaction)

Summary — Judgment of the Court (Second Chamber), 11 July 2013

1.        Approximation of laws — Copyright and related rights — Directive 2001/29 — Harmonisation of certain aspects of copyright and related rights in the information society — Right of reproduction — Exception for private copying — Fair compensation — Financing of compensation by a levy on digital reproduction media — Indiscriminate charging with a possible right to reimbursement of the levy — Lawfulness — Conditions — Verification by the national court

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

2.        Approximation of laws — Copyright and related rights — Directive 2001/29 — Harmonisation of certain aspects of copyright and related rights in the information society — Right of reproduction — Exception for private copying — Fair compensation — Financing of compensation by a levy on digital reproduction media — Rebuttable presumption of private use of such media — Lawfulness — Conditions

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

3.        Approximation of laws — Copyright and related rights — Directive 2001/29 — Harmonisation of certain aspects of copyright and related rights in the information society — Right of reproduction — Exception for private copying — Fair compensation — Financing of compensation by a levy on digital reproduction media — Payment of funds received by way of such levy in part to those entitled and in part to social and cultural institutions — Lawfulness — Conditions — Verification by the national court

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

4.        Approximation of laws — Copyright and related rights — Directive 2001/29 – Harmonisation of certain aspects of copyright and related rights in the information society — Right of reproduction — Exception for private copying — Fair compensation — Financing of compensation by a levy on digital reproduction media — Prior payment of a comparable levy in another Member State — No effect

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

1.        Article 5(2)(b) of Directive 2001/29 on the harmonisation of certain aspects of copyright and related rights in the information society must be interpreted as meaning that it does not preclude legislation of a Member State which indiscriminately applies a private copying levy on the first placing on the market in its territory, for commercial purposes and for consideration, of recording media suitable for reproduction, while at the same time providing for a right to reimbursement of the levies paid in the event that the final use of those media does not meet the criteria set out in that provision, where, having regard to the particular circumstances of each national system and the limits imposed by that directive, which it is for the national court to verify, practical difficulties justify such a system of financing fair compensation and the right to reimbursement is effective and does not make repayment of the levies paid excessively difficult.

(see para. 37, operative part 1)

2.        Article 5(2)(b) of Directive 2001/29 on the harmonisation of certain aspects of copyright and related rights in the information society must be interpreted as meaning that, in the context of a system of financing of fair compensation under that provision by means of a private copying levy to be borne by persons who first place recording media suitable for reproduction on the market in the territory of the Member State concerned for commercial purposes and for consideration, that provision does not preclude the establishment by that Member State of a rebuttable presumption of private use of such media where they are marketed to natural persons, where the practical difficulties of determining whether the purpose of the use of the media in question is private justify the establishment of such a presumption and provided that the presumption established does not result in the imposition of the private copying levy in cases where the final use of those media clearly does not fall within the case referred to in that provision.

(see para. 45, operative part 2)

3.        Article 5(2)(b) of Directive 2001/29 on the harmonisation of certain aspects of copyright and related rights in the information society must be interpreted as meaning that the right to fair compensation under that provision or the private copying levy intended to finance that compensation cannot be excluded by reason of the fact that half of the funds received by way of such compensation or levy is paid, not directly to those entitled to such compensation, but to social and cultural institutions set up for the benefit of those entitled, provided that those social and cultural establishments actually benefit those entitled and the detailed arrangements for the operation of such establishments are not discriminatory, which it is for the national court to verify.

Directive 2001/29 does not require Member States which have introduced the private copying exception into their national law to pay those entitled to such fair compensation all the fair compensation in cash and does not preclude those Member States from providing, in the exercise of the wide discretion which they enjoy, that part of that compensation be provided in the form of indirect compensation.

Consequently, the fact that a part of the revenue intended for fair compensation under Article 5(2)(b) of Directive 2001/29 is intended for social and cultural establishments set up for the benefit of those entitled to such compensation is not in itself contrary to the objective of that compensation, provided that those social and cultural establishments actually benefit those entitled and the detailed arrangements for the operation of such establishments are not discriminatory, which it is for the national court to verify.

(see paras 49, 53, 55, operative part 3)

4.        Article 5(2)(b) of Directive 2001/29 on the harmonisation of certain aspects of copyright and related rights in the information society must be interpreted as meaning that the obligation undertaken by a Member State to pay, on the placing on the market, for commercial purposes and for consideration, of recording media suitable for reproduction, a private copying levy intended to finance the fair compensation under that provision may not be excluded by reason of the fact that a comparable levy has already been paid in another Member State.

Given that a Member State which has introduced the private copying exception into its national law and in which the final users who privately reproduce a protected work live must ensure, in accordance with its territorial competence, the effective recovery of the fair compensation for the harm suffered by those entitled, the fact that a levy intended to finance that compensation has already been paid in another Member State cannot be relied on to exclude the payment in the first Member State of such compensation or of the levy intended to finance it.

However, a person who has previously paid that levy in a Member State which does not have territorial competence may request its repayment in accordance with its national law.

(see paras 64-66, operative part 4)