31.8.2013

Official Journal of the European Union

C 252/10

(Case C-521/11) (<a id="ntc1-C_2013252EN.01001001-E0001" href="#ntr1-C_2013252EN.01001001-E0001"> (<span class="super">1</span>)</a>

(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)

2013/C 252/15

Language of the case: German

Referring court

Parties to the main proceedings

Applicants: Amazon.com International Sales Inc., Amazon EU Sàrl, Amazon.de GmbH, Amazon.com GmbH, in liquidation, Amazon Logistik GmbH

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

Re:

Request for a preliminary ruling — Oberster Gerichtshof — Interpretation of Articles 2 and 5 of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (<a href="./../../../../legal-content/EN/AUTO/?uri=OJ:L:2001:167:TOC">OJ 2001 L 167, p. 10</a>) — Right of reproduction — Interpretation of the notion of ‘fair compensation’ under Article 5(2)(b) of Directive 2001/29/EC — Legislation of a Member State providing for the indiscriminate application of a private copying levy on all media for reproduction and for the repayment of that levy in the case of the export of the medium before its sale to a final consumer or in the case of reproduction authorised by the rightholder

Operative part of the judgment

Article 5(2)(b) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 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;

Article 5(2)(b) of Directive 2001/29 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;

Article 5(2)(b) of Directive 2001/29 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;

Article 5(2)(b) of Directive 2001/29 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.

(<span class="super">1</span>) OJ C 25, 28.1.2012.