1709 Blog: for all the copyright community

Thursday, 30 April 2015

Sexies appeal and natural persons: more questions for the CJEU

Case C-110/15 Nokia Italia and others is a reference by the Consiglio di Stato, Italy, to the Court of Justice of the European Union (CJEU) of a request for a preliminary ruling on the compatibility of Italian legislation on copyright, and in particular on compensation due to holders of copyright-related rights for the private reproduction, on any medium of phonograms and videos made by natural persons for personal use (ie not for profit), with Directive 2001/29 -- the InfoSoc Directive. 

The questions referred to the CJEU are
1. Does Community law, and in particular recital 31 in the preamble to, and Article 5(2)(b) of, Directive 2001, preclude national rules (in particular Article 71 sexies of the Italian Legge sul Diritto d’autore (Law on copyright), in conjunction with Article 4 of the [Decree of] 30 December 2009) that provide that, in the case of media and devices acquired for purposes clearly unrelated to private copying (that is to say, for professional use only), determination of the criteria for ‘ex ante’ exemption from the levy is left to private negotiation, or ‘free bargaining’, with particular regard to the ‘application protocols’ referred to in Article 4 above, failing any general provisions and any guarantee of equal treatment between the [notorious famous Italian collecting society] SIAE and persons obliged to pay the compensation, or their trade or professional associations?

2. Does Community law, and in particular recital 31 in the preamble to, and Article 5(2)(b) of, Directive 2001/29, preclude national rules (in particular Article 71 sexies of the Italian Law on copyright, in conjunction with the [Decree of] 30 December 2009, and the instructions on reimbursement given by the SIAE, that provide that, in the case of media and devices acquired for purposes clearly unrelated to private copying (that is to say, for professional use only), reimbursement may be requested only by the final user rather than the producer of the media and devices?
For the record, Recital 31 of the Directive reads like this:
(31) A fair balance of rights and interests between the different categories of rightholders, as well as between the different categories of rightholders and users of protected subject-matter must be safeguarded. The existing exceptions and limitations to the rights as set out by the Member States have to be reassessed in the light of the new electronic environment. Existing differences in the exceptions and limitations to certain restricted acts have direct negative effects on the functioning of the internal market of copyright and related rights. Such differences could well become more pronounced in view of the further development of transborder exploitation of works and cross-border activities. In order to ensure the proper functioning of the internal market, such exceptions and limitations should be defined more harmoniously. The degree of their harmonisation should be based on their impact on the smooth functioning of the internal market.
and Article 5(2)(b) of the Directive runs thus:
2. Member States may provide for exceptions or limitations to the reproduction right provided for in Article 2 in the following cases:
...(b) in respect of reproductions on any medium made by a natural person for private use and for ends that are neither directly nor indirectly commercial, on condition that the rightholders receive fair compensation which takes account of the application or non-application of technological measures referred to in Article 6 to the work or subject-matter concerned;
The UK Intellectual Property Office invites comments. If you have any, just email to the Office at policy@ipo.gov.uk by not later than 11 May 2015 (that's nearly two weeks -- quite a generous time scale by traditional standards). Your comment may, just may, inspire the UK government to make a  submission before the Court.

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