A few days have passed since the Court of Justice of the European Union (CJEU) issued its decision in Case C-435/12 ACI Adam [here], ruling that Article 5(2)(b) of the InfoSoc Directive, read in conjunction with paragraph 5 of the same provision [this imported the 3-step test into EU copyright law], must be interpreted as precluding national legislations that do not distinguish the situation in which the source from which a reproduction for private use is made is lawful from that in which that source is unlawful.
As readers will remember, this case concerned the compatibility of Dutch private copying exception with EU law. Article 16 of the Dutch Copyright Act stated that the reproduction of a work or any part thereof would not be an infringement of copyright, provided that the reproduction was carried out without any direct or indirect commercial motivation and was intended exclusively for personal exercise, study or use by the natural person who made the reproduction.
Interpretation of Dutch law has been in the sense of including also copies made from unlicensed sources, eg unlawful downloads from the internet. The Dutch State Secretary held the view that reproducing works from unlicensed sources should no longer be part of the private copying exception, although these activities should not be punishable. However, at the end of 2012, Dutch Parliament dismissed this proposal, and decided instead to impose temporary private copy levies on certain digital and electronic devices and storage media.
Litigation ensued before Dutch courts between a number of importers and manufacturers of blank data media, eg CDs and CD-Rs, and two Dutch collecting societies. The former argued that they did not have to pay levies for reproductions from unlawful sources, in that only reproductions from lawful copies could fall within the scope of the private copying exception and, as a result, the amount of the applicable private copying levies should not take into account compensation for harm suffered as a result of copies of works made from unlawful sources.
|No need for an investigation: |
the Directive does simply omit to say whether
only lawful or also unlawful
Following two unfavourable judicial outcomes, ACI Adam and other importers and manufacturers brought their case before the Dutch Supreme Court. This decided to stay the proceedings and seek guidance from the CJEU.
As Advocate General Cruz Villalon observed in his Opinion [from which the Court did not depart], although in some Member States (Denmark, Germany, Spain, Italy, Portugal) the law already excludes applicability of the relevant national private copying exception to reproductions from unlawful sources, and some national judges (eg the French Conseil d’État) have interpreted the scope of this exception in the sense of excluding its applicability to reproductions from unlawful sources, whether the private copying exception within Article 5(2)(b) of the InfoSoc Directive may only encompass reproductions from licensed sources was an issue on which the CJEU had not ruled yet.
|The 3-step steps|
|Aww ... If only shopping for copyright |
exceptions was this cute
|It's all about the market|
This would follow from Recital 44 in the preamble to the InfoSoc Directive.
According to the Court, this Recital suggests that when Member States provide for one of the exceptions and limitations referred to by the InfoSoc Directive, the scope of the resulting national exception or limitation could be limited even more when it comes to certain new uses of copyright works and other subject-matter. By contrast, neither this Recital nor any other provision in the Directive appears to envisage the possibility for Member States to extend the scope of the national exception or limitation beyond what is permitted by Article 5.