The team is joined by Guest Kats Rosie Burbidge, Stephen Jones, Mathilde Parvis, and Eibhlin Vardy, and by InternKats Verónica Rodríguez Arguijo, Hayleigh Bosher, Tian Lu and Cecilia Sbrolli.

Thursday, 5 January 2012

Amazons, Austro Mechana march on Luxembourg

Amazon-watchers have been quick to spot the latest reference of a case to the Court of Justice of the European Union for a preliminary ruling: it's Case C-521/11 Austro-Mechana Gesellschaft zur Wahrnehmung mechanisch-musikalischer Urheberrechte Gesellschaft m.b.H., Vienna v (i) International Sales Inc., (ii) Amazon EU S.á.r.l., (iii) GmbH, Munich, (iv) GmbH (in liquidation) and (v) Amazon Logistik GmbH. The referring court is the Oberster Gerichtshof (Supreme Court, Austria) and it asks the following questions concerning 'fair compensation' for private copying purposes:
"1. Can a legislative scheme be regarded as establishing 'fair compensation' for the purposes of Article 5(2)(b) of Directive 2001/29 [the Directive on copyright and the information society], where:

-- the persons entitled under Article 2 of Directive 2001/29/EC have a right to equitable remuneration, exercisable only through a collecting society, against persons who, acting on a commercial basis and for remuneration, are first to place on the domestic market recording media capable of reproducing the works of the rightholders,
-- this right applies irrespective of whether the media are marketed to intermediaries, to natural or legal persons for use other than for private purposes or to natural persons for use for private purposes, and
-- the person who uses the media for reproduction with the authorisation of the rightholder or who prior to its sale to the final consumer re-exports the media has an enforceable right against the collecting society to obtain reimbursement of the remuneration? 
2. If Question 1 is answered in the negative:

2.1. Does a scheme establish 'fair compensation' for the purposes of Article 5(2)(b) of Directive 2001/29/EC if the right specified in Question 1(a) applies only where recording media are marketed to natural persons who use the recording media to make reproductions for private purposes?

2.2 If Question 2.1 is answered in the affirmative:

Where recording media are marketed to natural persons must it be assumed until the contrary is proven that they will use such media with a view to making reproductions for private purposes?

3. If Question 1 or 2.1 is answered in the affirmative:

Does it follow from Article 5 of Directive 2001/29/EC or other provisions of EU law that the right to be exercised by a collecting society to payment of fair compensation does not apply if, in relation to half of the funds received, the collecting society is required by law not to pay these to the persons entitled to compensation but to distribute them to social and cultural institutions?

4. If Question 1 or 2.1 is answered in the affirmative:

Does Article 5(2)(b) of Directive 2001/29/EC or other provision of EU law preclude the right to be exercised by a collecting society to payment of fair compensation if in another Member State - possibly on a basis not in conformity with EU law - equitable remuneration for putting the media on the market has already been paid?".
This information comes from the UK's Intellectual Property Office website.  Says the Office, "If you would like to comment on this case please email before 16 January 2012". This is a good deal longer than we usually get to comment, which is welcome.

The IPKat is curious to know a bit more about the background to this case. Can any of his Austrian readers advise him?

1 comment:

Anonymous said...

Whenever I see such a list of questions with alternatives I get so dense. Reading it presupposes a lot of background knowledge, and some of it is obviously not apparent even to those who frame these questions. Let us look at what “recording media” are capable of (Question 1, first alinéa). I want to state quite unequivocally that a recording medium is not capable of reproducing anything. It is simply a storage device (either physical, tangible, as e.g. a CD-R or a lacquer disc, or a section of a computer file system). This storage device requires a device for converting the stored information into whatever expression in time you are looking for. And a very specific converting device it must be for each type of storage device. The media cannot do that on their own, and even with the converting device they will only reproduce a work of a rightholder if it has first been converted by a different very specific input device from the “work” space into the space of the recording medium. It is hence at least a 3-step process involving apparatus getting from the “work” and to a reproduction of said “work”. It is a “system”, not a “medium” that is required.

What if the media or the apparatus, in other words the system, are physically incapable of containing all the information required to act as a storage medium that reproduces a “work”. The system then only imitates the “work”. Most modern distribution systems use data reduction algorithms that provide only 10% of the information that is in the original “work”. The rest is imagination in the listener. This to a large degree already prevents many re-uses of the information made available. What is the limit of quality to be applied for the “work” to be recognizable in the reproduced processing of the system?

I think that legislators and litigators are frequently taking the easy way out, avoiding the discussion of fundamental prinicples that are defined by the technology used. Thereby they are creating a body of jurisprudence that is virtually useless, because it is in no way generalizable. But perhaps legislators and litigators would prefer us to live in a simplified meta-world?

Individual copying for personal use has been known for 110 years and pirating (“selling unauthorized copies commercially”, thank you!) for almost just as long. But it is no good leaving precision behind, just because technology changes and becomes available to more and more people.


George Brock-Nannestad

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