19.12.2009

Official Journal of the European Union

C 312/18

(Case C-387/09)

2009/C 312/30

Language of the case: Spanish

Referring court

Juzgado Mercantil No 1 de Santa Cruz de Tenerife

Parties to the main proceedings

Applicant: Entidad de Gestión de Derechos de los Productores Audiovisuales (EGEDA)

Defendant: Magnatrading S.L.

Questions referred

1.Is the concept of ‘fair compensation’ in Article 5(2)(b) of Directive 2001/29/EC (1) a new Community concept which must be interpreted in the same way in all the Member States of the European Community?

2.If the reply to the first question is in the affirmative:

2.1.If a national system of equitable remuneration for private copying existed before the entry into force of Directive 2001/29/EC, must the national provisions be interpreted ‘in conformity’ with the new concept of ‘fair compensation’ for private copying following the entry into force of Directive 29/2001?

2.2.Must the scope of the private copying exception in Article 5(2)(b) of Directive 2001/29, and the criteria set out in recital 35 in the preamble to the directive, be taken into account in order to determine which devices are subject to the payment of fair compensation and the amount thereof? If that is the case, would it be compatible with the Community concept of ‘fair compensation for private copying’ (a) to establish a liability to pay that compensation in respect of devices intended for personal and professional use other than ‘private copying’ and/or (b) to set a flat-rate payment which does not take account of whether the devices are used for the purposes of private copying and the harm which is liable to result from such use, thereby making situations where there is no harm or where the harm is negligible also subject to the payment of compensation?

2.3.Is a system which, by setting a private copying limit, establishes a general liability to pay fair compensation on a certain category of equipment or media (for example, recordable CD-R and DVD-R data computer disks), irrespective of whether they are purchased by natural persons for private use or by natural persons for professional use in order to generate and store their own data or in compliance with legal obligations, or by legal persons who do not benefit from the private copying exception in any circumstances, compatible with Article 5(2)(b) of Directive 2001/29?

3.If the reply to the first question is in the negative:

3.1.Does that mean that Member States have complete freedom to lay down the criteria and mechanisms for determining which devices are subject to the payment of fair compensation for private copying and the amounts thereof, or are there certain limits on that freedom and, if so, what are they?

3.2.Does that mean that Member States are entitled to permit private third parties to collect compensation in respect of works which authors have assigned voluntarily and free of charge to a society by means of licences or are there certain limits on that right and, if so, what are they?

3.3.Does that mean that Member States are entitled to permit private third parties to collect compensation from users where such users lawfully comply with a provision which is public and binding or are there certain limits on that right and, if so, what are they?

(1) 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

OJ L 167, p. 10