1709 Blog: for all the copyright community

Tuesday, 1 November 2011

Printers, plotters and pronouncements: more work for the Court of Justice

The 1709 Blog has received, via the UK's Intellectual Property Office (IPO), notification of what appear to be four new and related cases referred by the German Bundesgerichtshof to the Court of Justice of the European Union for a preliminary ruling: Cases C-457/11 to  C-460/11 VG Wort and others. No details of this reference appear so far on the Curia website, but the IPO explains that the reference concerns the question whether printers and plotters (devices by which graphics can be reproduced) are among the reproduction devices on which remuneration for copyright is to be paid.

"1. In interpreting national law, is account to be taken of the directive [this would appear to be Directive 2001/29 on the harmonisation of certain aspects of copyright and related rights in the information society] in respect of events which occurred after the directive entered into force on 22 June 2001, but before it became applicable on 22 December 2002? 
2. Do reproductions effected by means of printers constitute reproductions effected by the use of any kind of photographic technique or by some other process having similar effects within the meaning of Article 5(2)(a) of the directive? 
3. If Question 2 is answered affirmatively: can the requirements laid down in the directive relating to fair compensation for exceptions or limitations to the right of reproduction under Article 5(2) and (3) of the directive, having regard to the fundamental right to equal treatment under Article 20 of the EU Charter of Fundamental rights, be fulfilled also where the appropriate reward must be paid not by the manufacturers, importers and traders of the printers but by the manufacturers, importers and traders of another device or several other devices of a chain of devices capable of making the relevant reproductions? 
4. Does the possibility of applying technological measures under Article 6 of the directive abrogate the condition relating to fair compensation within the meaning of Article 5(2)(b) thereof? 
5. Is the condition relating to fair compensation (Article 5(2)(a) and (b) of the directive) and the possibility thereof (see recital 36 in the preamble to the directive) abrogated where the rightholders have expressly or implicitly authorised reproduction of their works?"

If you would like to make any comment on this case to the IPO, which in turn might just precipitate UK involvement, you have until next Monday, 7 November 2011, to do so. Just email Policy here and say your bit.

This blogger's guess is that the court might just find itself taking a look at its earlier decision in Case C-462/09 Thuiskopie v Opus -- where the remuneration mechanism was considered but the EU Charter of Fundamental Rights was not.

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