From October 2016 to March 2017 the team is joined by Guest Kats Rosie Burbidge and Eibhlin Vardy, and by InternKats Verónica Rodríguez Arguijo, Tian Lu and Hayleigh Bosher.

Wednesday, 18 December 2013

Levies, fair compensation, CJEU ... It's InfoSoc fun once again

Merpel was really enjoying her day ...
There are few things in this world that have the power to upset overly sensitive Merpel more than seeing the Court of Justice of the European Union (CJEU) being still referred to as ECJ [as it was before the adoption of the Treaty of Lisbon in 2007]. However tolerance and forgiveness are universally considered great virtues. So, really for the sake of being virtuous, the IPKat would like to draw readers' attention to a new copyright reference for a preliminary ruling to the CJEU, details of which (together with reference to the 'European Court of Justice') can be found on the UK Intellectual Property Office (IPO) website

This is Case C-
572/13 Hewlett-Packard Belgium, a reference from ... Belgium (indeed), seeking clarification as to - among other things - the notion of fair compensation [this is no new business for the Court: recent references on this have been Case C-467/08 Padawan, on which see here, and Case C-521/11 Amazon, on which see here].

As explained by the IPO, the background dispute concerns a Belgian law by which a levy must be applied against devices sold to the Belgian government for remunerating authors and publishers of works copied. It is argued that the Belgian law is incompatible with EU law as 'remuneration' in the Belgian legislation is not consistent with that of 'fair compensation'.

... Until she spotted
reference to the 'ECJ'
The questions referred for a preliminary ruling are the following:

Question 1

Must the term 'fair compensation' contained in Article 5(2)(a) and Article 5(2)(b)
 [of Directive 2001/29/EC] be interpreted differently depending on whether the reproduction on paper or a similar medium effected by the use of any kind of photographic technique or by some other process having similar effects is carried out by any user or by a natural person for private use and for ends that are neither directly nor indirectly commercial [just reading this makes Merpel want to take a headache painkiller, but hold on: the other questions are even longer]? If the answer is in the affirmative, on what criteria must that difference of interpretation be based?

Question 2

Must Article 5(2)(a) and Article 5(2)(b) of Directive 2001/29 be interpreted as authorising the Member States to fix the fair compensation payable to rightholders in the form of: (1) a lump-sum remunerative payment made by the manufacturer, importer or intra-Community acquirer of devices enabling protected works to be copied, at the time when such devices are put into circulation on national territory, the amount of which is calculated solely by reference to the speed at which the copier is capable of producing a number of copies per minute, without being otherwise linked to any harm suffered by rightholders; and, (2) a proportional remunerative payment, determined solely by means of a unit price multiplied by the number of copies produced, which varies depending on whether or not the person liable for payment has cooperated in the collection of that remuneration, which is payable by natural or legal persons making copies of works or, as the case may be, in lieu of those persons, by those who, for consideration or free of charge, make a reproduction device available to others. 

Rupert is already drafting his answers,
confident that they will be shorter
and perhaps more intelligible than
the questions referred
If the reply to this question is in the negative, what are the relevant and consistent criteria that the Member States must apply in order to ensure that, in accordance with European Union law, the compensation may be regarded as fair and that a fair balance is maintained between the persons concerned?

Question 3

Must Article 5(2)(a) and Article 5(2)(b) of Directive 2001/29 be interpreted as authorising the Member States to allocate half of the fair compensation due to rightholders to the publishers of works created by authors, the publishers being under no obligation whatsoever to ensure that the authors benefit, even indirectly, from some of the compensation of which they have been deprived?'

Question 4

Must Article 5(2)(a) and Article 5(2)(b) of Directive 2001/29 be interpreted as authorising the Member States to introduce an undifferentiated system for recovering the fair compensation due to rightholders in the form of a lump-sum and an amount for each copy made, which, implicitly but indisputably, covers in part the copying of sheet music and counterfeit reproductions?

If you wish to comment on this case [or just want to send IPO your season's greetings] please e-mail by 24 December 2013.


David Thomas Keeling said...

The official name of the Court before the entry into force of the Lisbon Treaty was "Court of Justice of the European Communities", which had been its name ever since 1958, when the European Economic Community and the European Atomic Energy Community were created, to operate alongside the European Coal and Steel Community, which had existed since 1953. The institution was commonly referred to as the European Court of Justice (or ECJ for short) because its full title was a bit of a mouthful. Thus the acronym ECJ is just as appropriate (or inappropriate, depending on how accurate you think acronyms need to be) now as it was before the entry into force of the Lisbon Treaty. There was not therefore any obvious need to change the short form of the Court's name in 2009. In any event neither acronym is official and neither has ever been used by the Court, so far as I know.

Jeremy said...

David, Everything you say is correct, of course, but those of us who have served time marking essays, editing submissions to legal journals and dealing with a wider public than IP experts will know how often "ECJ" is taken to be, or mistaken for, the European Court of Human Rights in Strasbourg. This tends not to happen when "CJEU" is used.

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