The matter at hand
The applicants in the main proceedings, including Nokia, Hewlett-Packard, Dell and Sony, produce and sell personal computers, recorders, storage media, mobile telephones and cameras. In the context of several disputes concerning the ‘fair compensation’ to be paid by the applicants to the Italian collecting society SIAE for private copies made by virtue of the Italian implementation of Article 5(2)(b) of the Copyright DirectiveDirective 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, the referring court in Italy referred the following questions to ECJ:
I. Does Article 5(2)(b) of the Copyright DirectiveDirective 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 preclude national legislation according to which an exemption from the levy for private copying with respect to reproduction media and devices acquired for professional use, can be obtained only through the conclusion of agreements with the national collecting society, in this case SIAE?
II. Does Article 5(2)(b) of the Copyright DirectiveDirective 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 preclude national legislation that provides that, when reproduction media and devices are acquired for professional use only, reimbursement of the levy paid may be requested only by the final user and not by the manufacturers and importers of the media and devices?’
The judgment of the ECJ
The ECJ holds that the questions of the referring court must be examined in light of the two principles set by the ECJ in Copydan (C‑463/12) and Amazon (C‑521/11), namely that (i) the private copying levy “must not be applied to the supply of reproduction equipment, devices and media to persons other than natural persons for purposes clearly unrelated to private copying” (paragraph 36) and that (ii) the levy system used “must provide for a right to reimbursement of the private copying levy which is effective and does not make it excessively difficult to obtain repayment of the levy paid” (paragraph 37).
Further, the ECJ makes clear that the exceptions provided for in Article 5 of the Copyright DirectiveDirective 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 “must be applied in a manner consistent with the principle of equal treatment, affirmed in Article 20 of the CharterCharter of Fundamental Rights of the European Union [2000/C 364/01] (…) which (…) requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified” (paragraph 44).
The ECJ rules that the Italian system does not comply with these principals, because the national legislation does not contain any generally applicable provision exempting producers and importers who show that the devices and media were acquired for professional use, and because such an exemption can be obtained only by concluding an agreement with SIAE, the terms of which may differ in each case being subject to ‘free bargaining’ (paragraphs 46-49).
Regarding the second question, the ECJ recalls that it already held in Copydan (C‑463/12) that EU law does not preclude a system of fair compensation which provides for a right to reimbursement of the private copying levy for the final user of the devices or media subject to the levy, provided that the persons responsible for payment (in this case the manufacturers and importers of said media and devices) are exempt from payment of that levy if they establish that they have supplied the devices and media in question to persons other than natural persons for purposes clearly unrelated to private copying (paragraph 55).
On this basis, the ECJ concludes that Article 5(2)(b) of the Copyright DirectiveDirective 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 “precludes national legislation, such as that at issue in the main proceedings, that, on the one hand, subjects exemption from payment of the private copying levy for producers and importers of devices and media intended for use clearly unrelated to private copying to the conclusion of agreements between an entity which has a legal monopoly on the representation of the interests of authors of works, and those liable to pay compensation, or their trade associations, and, on the other hand, provides that the reimbursement of such a levy, where it has been unduly paid, may be requested only by the final user of those devices and media” paragraph 56).
Furthermore, the ECJ denies SIAE’s request to limit the effects of the judgment in time (paragraphs 57-64), which means SIAE may become liable for the restitution of levies already collected from the applicants in the past with respect to devices and media acquired for professional use, even though SIAE has already distributed the collected levies to the rightholders.