The matter at hand
This preliminary ruling concerns the interpretation 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 request has been made in connection with national Spanish legislation relating to a scheme for fair compensation for private copying financed from the General State Budget. This scheme is funded by all Spanish taxpayers regardless of whether they make private copies.
In proceedings between Spanish collecting societies on the one hand and the State of Spain on the other, the referring court asked the ECJ whether a scheme for fair compensation for private copying is compatible with 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 where that scheme is financed from the General State Budget.
The judgment of the ECJ
The ECJ recalls that it follows from established case law that - although Member States are free to establish a scheme under which legal persons are, under certain conditions, liable to pay the levy intended to finance the fair compensation - the burden of that levy must ultimately be borne by the private users who make copies for private use (paragraph 34). Therefore, “legal persons should not in any event be the persons ultimately actually liable for payment of that burden” (paragraph 36).
In the present case, it is clear that the fair compensation is financed from all the budget resources of the General State Budget and therefore also from all taxpayers, including legal persons (paragraph 39). Considering, further, that there is no particular measure in Spanish law allowing legal persons to request to be exempted from contributing to the financing of that compensation or to seek reimbursement, such a scheme for financing the fair compensation cannot guarantee that the burden of that compensation is ultimately borne solely by the users of private copies (paragraphs 40 and 41).
Therefore, 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 must be interpreted as precluding a scheme for fair compensation for private copying which is financed from the General State Budget in such a way that it is not possible to ensure that the cost of that compensation is borne by the users of private copies (paragraph 42).