the matter at hand

Seven.One  is a broadcasting organisation which produces and broadcasts a private, advertising-financed television channel in Germany. Seven.One requested compensation in respect to blank media levy from Corint Media, a German collective management company responsible for managing the copyrights and related rights of private television channels, including Seven.One. Corint Media declined Seven.One’s request based on national legislation that excludes broadcasting organisations from the right to fair compensation.

The Landgericht Erfurt (the Regional Court of Erfurt, Germany) was uncertain about the compatibility of the national legislation with European law. It therefore submitted questions to the ECJ, including whether broadcasting organizations, whose broadcasts are recorded by individuals for private and non-commercial use, can be excluded from the right to fair compensation as outlined in 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 judgment of the ecj

The ECJ emphasizes the equal treatment of various rightholders under Article 2 of Directive 2001/29, stating that all categories of rightholders, namely authors, performers, phonogram and film producers and broadcasting organizations, should enjoy the same level of protection for their work under the reproduction right.

The ECJ further underscores the necessity for fair compensation systems for these rightholders, as outlined in 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, which should be linked to the harm suffered due to private copying and the objective to compensate them (see Ausro-Mechana C-433/20, Ametic C-263/21). In principle, broadcasting organizations, in Member States implementing the private copying exception, should be granted the right to fair compensation similar to other rightholders mentioned in Article 2 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.

However, the ECJ notes that 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 does not provide any further details on the various elements of the fair compensation system, providing Member States with broad discretion to define those elements, “inter alia, who must pay that compensation and to establish the form, detailed arrangements for collection and the level of that compensation” (paragraph 35). No obligation for payment may arise when the prejudice to the rightholder would be minimal, aligning with the principle of maintaining a fair balance between the rightholders and the users of the protected subject matter (Amazon.com International Sales and Others C-521/11, Ausro-Mechana C-433/20). The ECJ further indicates that Member States, in certain cases, has the option to exempt payment of fair compensation when the prejudice to rightholders is minimal (Copydan Båndkopi, C‑463/12). However, “A difference in treatment between those broadcasting organisations and the other rightholders must, therefore, be based on an objective and reasonable criterion and be proportionate to the aim pursued by the treatment concerned.” (paragraph 47).  

In conclusion, 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 prohibits national legislation excluding broadcasting organizations from fair compensation where their broadcasts are reproduced for private use and non-commercial ends, provided these organizations suffer potential harm not classified as ‘minimal’.