Fair compensation in respect of media reproductions made for private use under the ECJ’s judgment

Author: Erikas Saukalas, associated partner, attorney-at-law and head of the International Relations Division at METIDA

CD_DVD_CollectionsNo one could argue that new technologies and changes in economy have a lot of impact on legislation, especially when it comes to digitising books or other texts for the personal use and compensation in respect of the reproduction right. Let us here review a new judgement given by the Court of Justice of the European Union (ECJ) on 5 March 2015 that tackles this matter.

This ECJ judgement is important to authors, multifunctional media producers and importers, as well as private users.

Under the national law acts, the fair compensation may be provided in respect to the multifunctional media, e.g. mobile phone memory cards. In this case it is irrelevant whether the card is used for private copying or not. This fact, however, may have an effect to the actual level of the compensation. The size of the media may have an effect to the level of the compensation too. The compensation may not be liable if the use of multifunctional media causes minimal damage to a person.

Under this judgement, Member States’ regulations, that foresee the system where the payment for copying has to be made by producers and (or) importers who sell memory cards to other business entities being aware that they resell them but not knowing that the final buyers are private persons or companies, do not contradict the EU law on condition that:

  • The system is justified by practical difficulties related to the identification of final users or other difficulties.
  • Producers and (or) importers are exempted from the levy if they can prove that memory cards were provided to persons other than natural persons for purposes unrelated to private use.
  • Under that system, a final purchaser has the right to obtain reimbursement for the private copying.

Author’s consent to use computer files that contain his/her works does not have to have any effect on person’s duty to pay the fair compensation in respect of reproductions made for personal use.

Furthermore, the implementation for the technological measures for devices used for the reproduction of works, e.g. DVDs, CDs, MP3 players or computers, does not eliminate the duty to pay the compensation in respect of reproductions made for private use by means of such devices. The implementation of these measures may only have an effect on the actual level of the compensation

According to the ECJ, the compensation cannot be provided if the protected works are reproduced using unlawful sources that are made available to the public without the rightholder’s consent. However, the compensation may be provided, if the protected works are reproduced by a natural person with the aid of the device belonging to a third party.

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