BREAKING NEWS: AG Cruz Villalon says that private copying exception only applies to copies made from lawful sources

This morning Advocate General (AG) Cruz Villalón released his much awaited Opinion [only available in a limited number of languages, which include neither English nor Italian] in Case C-435/12 ACI Adam, a very interesting reference for a preliminary ruling from The Netherlands seeking clarification as to interpretation of the exception or limitation for private copying, pursuant to Article 5(2)(b) of the InfoSoc Directive.

This Kat understands that Dutch law currently allows the reproduction of a work or any part thereof, provided that the reproduction is carried out without any direct or indirect commercial motivation and is intended exclusively for personal exercise, study or use by the natural person who made the reproduction. 

Interpretation of Dutch law has been such as to include also copies made from illegal sources, eg illegal downloads from the internet.

The Dutch State Secretary proposed to make the practice of downloading work from illegal sources unlawful (yet non-punishable), but at the end of 2012 Dutch Parliament dismissed plans to prohibit illegal downloading and decided – instead - to impose temporary private copy levies on certain digital and electronic devices and storage media.

It appeared questionable whether a law which allows copying from illegal sources is compliant with EU copyright law. So, the Dutch Supreme Court decided to seek guidance from the Court of Justice of the European Union (CJEU), asking: 

“Should Article 5(2)(b) - whether or not in conjunction with Article 5(5) [this intended to import the three-step test into EU copyright law] - of the [InfoSoc] Directive be interpreted as meaning that the limitation on copyright referred to therein applies to reproductions which satisfy the requirements set out in that provision, regardless of whether the copies of the works from which the reproductions were taken became available to the natural person concerned lawfully - that is to say: without infringing the copyright of the rightholders - or does that limitation apply only to reproductions taken from works which have become available to the person concerned without infringement of copyright? [translating into human-readable language: does the private copying exception/limitation apply no matter whether the source from which the copy is made is legitimate?]

a.    If the answer to question 1 is that expressed at the end of the question, can the application of the 'three-stage test' referred to in Article 5(5) of the Copyright Directive form the basis for the expansion of the scope of the exception of Article 5(2), or can its application only lead to the reduction of the scope of the limitation?

... At least from unlawful sources,
says the AG

b.    If the answer to question 1 is that expressed at the end of the question, is a rule of national law which provides that in the case of reproductions made by a natural person for private use and without any direct or indirect commercial objective, fair compensation is payable, regardless of whether the manufacture of those reproductions is authorised under Article 5(2) of the Copyright Directive - and without there being any infringement by that rule of the prohibition right of the rightholder and his entitlement to damages - contrary to Article 5 of the Copyright Directive, or to any other rule of European law?

In the light of the 'three-stage test' of Article 5(5) of the Copyright Directive, is it important when answering that question that technical resources to combat the making of unauthorised private copies are not (yet) available?

Is the Enforcement Directive applicable to proceedings such as these where - after a Member State, on the basis of Article 5(2)b of the Copyright Directive, has imposed the obligation to pay the fair compensation referred to in that provision on producers and importers of media which are suitable and intended for the reproduction of works, and has determined that that fair compensation should be paid to an organisation designated by that Member State which has been charged with collecting and distributing the fair compensation - those liable to pay the compensation bring a claim for a declaration by the courts in respect of certain contested circumstances which have a bearing on the determination of the fair compensation, against the organisation concerned, which defends the action?”

Most importantly, AG Cruz Villalón held the view that the Court should respond the first question in the sense that Article 5(2)(b) must be interpreted as meaning that the private copying exception only applies to reproductions of works or other subject-matter protected by copyright and related rights made ​​from legitimate sources.

As soon as further translations become available, the IPKat will provide a more detailed analysis of the Opinion.