Copydan Båndkopi reference heads for Luxembourg

Case C-463/12 Copydan Båndkopi is the latest case to be referred to the Court of Justice of the European Union (CJEU) for preliminary rulings on a number of questions relating to fair compensation of right holders. The questions, cut-and-pasted from the UK Intellectual Property Office website, are as follows:

1. Is it compatible with Directive 2001/29/EC [the InfoSoc Directive] for Member States to have legislation which guarantees compensation for the rightholders for reproductions made using the following sources:

(1) files where the use in question is approved by the rightholders and paid for by the customer (licensed content from online shops, for example);

(2) files where the use in question is approved by the rightholders and not paid for by the customer (licensed content, for example, in connection with a marketing action);

(3) the user’s own DVD, CD, MP3 player, computer, etc., where effective technological measures are not applied;

(4) the user’s own DVD, CD, MP3 player, computer, etc., where effective technological measures are applied;

(5) a third party’s DVD, CD, MP3 player, computer, etc.;

(6) unlawfully copied works from the Internet or other sources;

(7) files copied lawfully in some other way from, for example, the Internet (from lawful sources where no licence has been granted)?

2. How must effective technological measures be taken into account, (ref.Article 6 of the Directive) in the Member States’ legislation on compensation for rightholders (ref. Article 5(2)(b) of the Directive)?

3. In the calculation of compensation for private copying (ref. Article 5(2)(b) of the Directive), what constitutes ‘situations where the prejudice to the rightholder would be minimal’, as referred to in recital 35 in the preamble to the Directive, with the result that it will not be compatible with the Directive for the Member States to have legislation which provides for compensation for rightholders for such copying for private use (ref. in this connection the survey referred to in part 2 above)?

4. (a) If it is assumed that the primary or most important function of memory cards in mobile phones is not private copying, is it compatible with the Directive for the Member States to have legislation which guarantees compensation for rightholders for copying on mobile phone memory cards?

(b) If it is assumed that private copying is one of the several primary or essential functions of memory cards in mobile phones, is it compatible with the Directive for the Member States to have legislation which guarantees compensation for rightholders for copying on mobile phone memory cards?

5. Is it compatible with the concept of ‘fair balance’ in recital 31 in the preamble to the Directive and with the uniform interpretation of the concept of ‘fair compensation’ (ref. Article 5(2)(b) of the Directive), which must be based on ‘prejudice’, for the Member States to have legislation under which remuneration is collected for memory cards, whereas no remuneration is collected for internal memory such as MP3 players or iPods, which are designed and primarily used for private copying?

6. (a) Does the Directive preclude the Member States from having legislation which provides for the collection of remuneration for private copying from a producer and/or importer who sells memory cards to business concerns which sell the memory cards on to both private and business customers, without the producer’s and/or importer’s having knowledge of whether the memory cards have been sold to private or business customers?

(b) Is the answer to question 6(a) affected if provisions are laid down in a Member State’s legislation which ensure that producers, importers and/or distributors do not have to pay remuneration for memory cards used for professional purposes, that producers, importers and/or distributors, where the remuneration has nevertheless been paid, can have the remuneration for memory cards refunded in so far as they are used for professional purposes, and that producers, importers and/or distributors can sell memory cards to other undertakings registered with the organisation which administers the remuneration scheme, without payment of remuneration?

(c) Is the answer to questions 6(a) and 6(b) affected

(1) if provisions are laid down in a Member State’s legislation ensuring that producers, importers and/or distributors do not have to pay remuneration for memory cards used for professional purposes, but the concept of ‘professional purposes’ is interpreted as conferring a right of deduction applying only to undertakings approved by Copydan, whereas remuneration must be paid for memory cards used professionally by other business customers which are not approved by Copydan;

(2) if provisions are laid down in a Member State’s legislation ensuring that producers, importers and/or distributors, where the remuneration has in fact been paid (theoretically), can have remuneration for memory cards refunded where they are used for professional purposes, but (a) it is in practice only the purchaser of the memory card who can have the remuneration refunded, and (b) the purchaser of memory cards must submit an application for refund of remuneration to Copydan;

(3) if provisions are laid down in a Member State’s legislation ensuring that producers, importers and/or distributors may sell memory cards to other undertakings registered with the organisation which administers the remuneration scheme, without payment of remuneration, but (a) Copydan is the organisation which administers the remuneration scheme and (b) the registered undertakings have no knowledge of whether the memory cards have been sold to private or business customers?

If you would like to tell the IPO what you think about this case please email policy@ipo.gsi.gov.uk by 12 December 2012.

This blogger has, as usual, no idea of the background to this reference, though he knows that Copydan is a Danish body and suspects therefore that this reference emanates from Denmark.  He also notes that some of the questions descend to a level of factual specificity which, he thinks, make it improbable that the CJEU will provide detailed answers.

If any readers can shed light on the background to this case, we will all be grateful.