Paris Court Denies Copyright Protection to Jimi Hendrix Photograph

Gered Mankowitz is a British photographer who photographed many famous musicians such as Mick Jagger and Annie Lennox. He took several photographs of Jimi Hendrix in 1967. One of these photographs represents the musician, wearing a military jacket, holding a cigarette and puffing a cloud of smoke while looking at the photographer. An original print recently sold at auction for £2,750.

This photograph was used without authorization in 2013 for an advertising campaign by Egotrade, a French electronic cigarette company. The ad showed Jimi Hendrix holding an electronic cigarette and the “Egotabaco” brand was printed on the ad. 

Gered Mankowitz and Bowstir Ltd, the company to which Mr. Mankowitz has assigned his patrimonial rights to the photography, filed suit in France. Bowstir claimed copyright infringement and Mr. Mankowitz claimed droit moral infringement. On May 21, the Paris Tribunal de Grande Instance (TGI), a court of first instance, ruled that the Jimi Hendrix photograph could not be protected by French intellectual property law, as it was not original.

Ceci n'est pas une oeuvre originale pour le TGI

French intellectual property law does not provide a definition of “originality.” Article L. 111-1 of the French Intellectual Property Code provides that “[t]he author of a work of the mind shall enjoy in that work, by the mere fact of its creation, an exclusive intangible property right enforceable against all. This right shall include attributes of intellectual and moral attributes as well as patrimonial attributes.” Article L. 112-1 specifies that the law “protects the rights of authors in all works of the mind, whatever their kind, form of expression, merit or purpose.”

The TGI cited the European Court of Justice (ECJ) Eva Maria Painer. v. Standard Verlags case, where the Court had discussed the originality of a picture taken by a school photographer. For the ECJ, which the TGI cited verbatim,

“[a]s stated in recital 17 in the preamble to Directive 93/98, an intellectual creation is an author’s own if it reflects the author’s personality. That is the case if the author was able to express his creative abilities in the production of the work by making free and creative choices. … As regards a portrait photograph, the photographer can make free and creative choices in several ways and at various points in its production. In the preparation phase, the photographer can choose the background, the subject’s pose and the lightening. When taking a portrait phoograph, he can choose the framing, the angle of view and the atmosphere created. Finally, when selecting the snapshot, the photographer may choose from a variety of developing techniques the ones he wishes to adopt or, where appropriate, use computer software. By making those various choices, the author of a portrait photograph can stamp the work created with his ‘personal touch’” (ECJ 88-92).

Indeed, Recital 17 of Directive 93/98/EEC states that a photograph is original “if it is the author’s own intellectual creation reflecting his personality, no other criteria such as merit or purpose being taken into account.” Article 6 of the same Directive states that photographs are original if “they are the author’s own intellectual creation.” This directive was repealed by Directive 2006/116/EC, of which Recital 16 reprises the same words than Recital 17.

The TGI then examined the Jimi Hendrix photograph. Gered Mankowitz had explained to the court that

“this photograph of Jimi Hendrix, as extraordinary as it is rare, succeeds in capturing a fleeting moment of time, the striking contrast between the lightness of the artist’s smile and the curl of smoke and the darkness and geometric rigor of the rest of the image, created particularly by the lines and angles of the torso and arms. The capture of this unique moment and its enhancement by light, contrasts and the narrow framing of the photograph on the torso and head of Jimi Hendrix reveal the ambivalence and contradictions of this music legend and make the photograph a fascinating work of great beauty which bears the stamp and talent of its author.”

This argument did not convince the TGI as Mr. Mankowitz,

“as doing so, satisfied himself by highlighting the aesthetic characteristics of the photography which are distinct from its originality which is indifferent to the merit of the work, and does not explain who the author of the choices made regarding the pose of the subject, his costume and his general attitude. Also, nothing [in this argument] allows the judge and the defendants to understand if these elements, which are essential criteria in assessing the original features claimed, that is, the framing, the use of black and white, the light decor meant to highlight the subject, and the lighting being themselves typical  fora portrait photography showing the subject facing, with his waist forward, are the fruit of the reflection of the author of the photograph or the subject, and if the work bears the imprint of the personality of Mr. Mankowitz or of Jimi Hendrix.”

Since the judges are therefore not able to appreciate whether this photograph is indeed original, the TGI ruled hat the photography lacked the originality necessary for its protection by French law, and that “the failure of the description of the characteristic elements of the alleged originality also constitutes a violation of the principle of defense rights.” The TGI thus concluded that Mr. Mankowitz had no intellectual property rights over the photograph.

By doing so, the TGI did not deny that this particular photography of Jimi Hendrix is not original. Rather, the court was not convinced that originality of the work was the result of choices made by Mr. Mankowitz. This case is less about what is an original work than how to prove that a work is indeed original.

As such, this ruling should give pause to French IP practitioners defending the rights of a photographer, as they must now prove why the author chose the different elements of a photograph and how these choices reflect his personality in such a way that the work is original. However, the case will be appealed, and so the debate on what is an original work, and how to prove, it is still ongoing in France.

Protecting rights of film directors: the ECJ rules

Last week the Court of Justice of the European Union gave a ruling in Case C-277/10, Martin Luksan v Petrus van der Let.  This was prompted by a reference for a preliminary reference from Austria.  In short, the court has affirmed that EU law requires Member States to ensure that their national law gives the principal director of a cinematographic work the initial ownership of the right to exploit it commercially, along with the initial entitlement to the right to fair compensation in respect of private copying.

Member States can establish a legal presumption that such exploitation rights will be automatically transferred to the producer of the film, so long as the parties are able to opt out of this transfer by agreement.  The right to fair compensation, however, cannot be the subject of an automatic presumption of transfer to the producer -- whether such a presumption is rebuttable or not.

The active part of the Court's ruling runs as follows:

"1. Articles 1 and 2 of Council Directive 93/83 ... on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission, and Articles 2 and 3 of Directive 2001/29 ... on the harmonisation of certain aspects of copyright and related rights in the information society in conjunction with Articles 2 and 3 of Directive 2006/115 ... on rental right and lending right and on certain rights related to copyright in the field of intellectual property and with Article 2 of Directive 2006/116 ... on the term of protection of copyright and certain related rights, must be interpreted as meaning that rights to exploit a cinematographic work such as those at issue in the main proceedings (reproduction right, satellite broadcasting right and any other right of communication to the public through the making available to the public) vest by operation of law, directly and originally, in the principal director. Consequently, those provisions must be interpreted as precluding national legislation which allocates those exploitation rights by operation of law exclusively to the producer of the work in question.

2. European Union law must be interpreted as allowing the Member States the option of laying down a presumption of transfer, in favour of the producer of a cinematographic work, of rights to exploit the cinematographic work such as those at issue in the main proceedings (satellite broadcasting right, reproduction right and any other right of communication to the public through the making available to the public), provided that such a presumption is not an irrebuttable one precluding the principal director of that work from agreeing otherwise.

3. European Union law must be interpreted as meaning that, in his capacity as author of a cinematographic work, the principal director thereof must be entitled, by operation of law, directly and originally, to the right to the fair compensation provided for in Article 5(2)(b) of Directive 2001/29 under the ‘private copying’ exception.

4. European Union law must be interpreted as not allowing the Member States the option of laying down a presumption of transfer, in favour of the producer of a cinematographic work, of the right to fair compensation vesting in the principal director of that work, whether that presumption is couched in irrebuttable terms or may be departed from".

This ruling marks what some will see as a further drift of harmonised European Union law away from its initial basis in the operation of rights in the marketplace and into the territory of the allocation of rights as between creators and entrepreneurs.

SOS, it's SAS! But that's just a matter of opinion ...

The joys of Google Image:
a search conducted under
the name of the Advocate
General turned this up as
the first search result

Yesterday Advocate General Bot issued his opinion in Case C-406/10 SAS Institute Inc. v World Programming Ltd, a reference to the Court of Justice of the European Union for a preliminary ruling from the Chancery Division of the High Court, England & Wales (for background click here).

In essence, SAS Institute Inc. developed analytical software the SAS System. This System was an integrated set of programs that let users carry out data processing and analysis tasks, especially statistical analysis. The core component of the SAS System was Base SAS, which let users write and run application programs to manipulate data, these applications being written in SAS Language. The functionality of Base SAS could be extended by the use of additional components, of which three -- SAS/ACCESS, SAS/GRAPH and SAS/STAT (referred to together with Base SAS as ‘the SAS components’) -- were relevant to this dispute.

Once upon a time the SAS Institute’s customers had no alternative but to take its licence to use the SAS components in order to be able to run their existing application programs in SAS language or to create new ones. Any customer wishing to change software supplier would have to rewrite its existing application programs in a different language, at considerable cost. For that reason, World Programming Limited (‘WPL’) had the idea of creating an alternative computer program, the World Programming System (‘the WPL System’), to let users run application programs written in SAS language.  WPL admitted that its intention was to emulate much of the functionality of the SAS components as closely as possible, so that the same inputs would produce the same outputs, since WPL wanted its customers’ application programs to run in the same way on the WPL system as it had on the SAS components.

SAS Institute sought an order that WPL’s actions infringed copyright in its computer programs. In two separate decisions, UK courts have ruled that it was not an infringement of the copyright in the source code of a computer program for a competitor of the right owner to study how the program functions and then to write its own program to emulate that functionality. SAS Institute, challenging that approach, has brought an action before the referring court and complaining that WPL has (i) copied the manuals for the SAS System published by SAS Institute when creating the WPL System, (ii) in so doing, indirectly copied the computer programs comprising the SAS components,(iii) used a version of the SAS system known as the ‘Learning Edition’, in breach of the terms of the licence relating to that version and the commitments made under that licence, and its copyright in that version, and (iv) infringed the copyright in the SAS Manuals by creating its own WPL manual.

Mr Justice Arnold stayed the proceedings and asked the Court of Justice for a considerable quantity of preliminary guidance:

"‘1. Where a computer program (“the First Program”) is protected by copyright as a literary work, is Article 1(2) [of Directive 91/250] to be interpreted as meaning that it is not an infringement of the copyright in the First Program for a competitor of the rightholder without access to the source code of the First Program, either directly or via a process such as decompilation of the object code, to create another program (“the Second Program”) which replicates the functions of the First Program? 

2. Is the answer to question 1 affected by any of the following factors:
(a) the nature and/or extent of the functionality of the First Program;
(b) the nature and/or extent of the skill, judgment and labour which has been expended by the author of the First Program in devising the functionality of the First Program;
(c) the level of detail to which the functionality of the First Program has been reproduced in the Second Program;
(d) if the source code for the Second Program reproduces aspects of the source code of the First Program to an extent which goes beyond that which was strictly necessary in order to produce the same functionality as the First Program? 

3. Where the First Program interprets and executes application programs written by users of the First Program in a programming language devised by the author of the First Program which comprises keywords devised or selected by the author of the First Program and a syntax devised by the author of the First Program, is Article 1(2) [of Directive 91/250] to be interpreted as meaning that it is not an infringement of the copyright in the First Program for the Second Program to be written so as to interpret and execute such application programs using the same keywords and the same syntax? 

4. Where the First Program reads from and writes to data files in a particular format devised by the author of the First Program, is Article 1(2) [of Directive 91/250] to be interpreted as meaning that it is not an infringement of the copyright in the First Program for the Second Program to be written so as to read from and write to data files in the same format? 

5. Does it make any difference to the answer to questions 1, 3 and 4 if the author of the Second Program created the Second Program by:
(a) observing, studying and testing the functioning of the First Program; or
(b) reading a manual created and published by the author of the First Program which describes the functions of the First Program (‘the Manual’); or
(c) both (a) and (b)? 

6. Where a person has the right to use a copy of the First Program under a licence, is Article 5(3) [of Directive 91/250] to be interpreted as meaning that the licensee is entitled, without the authorisation of the rightholder, to perform acts of loading, running and storing the program in order to observe, test or study the functioning of the First Program so as to determine the ideas and principles which underlie any element of the program, if the licence permits the licensee to perform acts of loading, running and storing the First Program when using it for the particular purpose permitted by the licence, but the acts done in order to observe, study or test the First Program extend outside the scope of the purpose permitted by the licence? 

7. Is Article 5(3) [of Directive 91/250] to be interpreted as meaning that acts of observing, testing or studying of the functioning of the First Program are to be regarded as being done in order to determine the ideas or principles which underlie any element of the First Program where they are done:
(a) to ascertain the way in which the First Program functions, in particular details which are not described in the Manual, for the purpose of writing the Second Program in the manner referred to in question 1 …;
(b) to ascertain how the First Program interprets and executes statements written in the programming language which it interprets and executes (see question 3 …);
(c) to ascertain the formats of data files which are written to or read by the First Program (see question 4 … );
(d) to compare the performance of the Second Program with the First Program for the purpose of investigating reasons why their performances differ and to improve the performance of the Second Program;
(e) to conduct parallel tests of the First Program and the Second Program in order to compare their outputs in the course of developing the Second Program, in particular by running the same test scripts through both the First Program and the Second Program;
(f) to ascertain the output of the log file generated by the First Program in order to produce a log file which is identical or similar in appearance;
(g) to cause the First Program to output data (in fact, data correlating zip codes to States of the United States of America) for the purpose of ascertaining whether or not it corresponds with official databases of such data, and if it does not so correspond, to program the Second Program so that it will respond in the same way as the First Program to the same input data. 

8. Where the Manual is protected by copyright as a literary work, is Article 2(a) [of Directive 2001/29] to be interpreted as meaning that it is an infringement of the copyright in the Manual for the author of the Second Program to reproduce or substantially reproduce in the Second Program any of the following matters described in the Manual:
(a) the selection of statistical operations which have been implemented in the First Program;
(b) the mathematical formulae used in the Manual to describe those operations;
(c) the particular commands or combinations of commands by which those operations may be invoked;
(d) the options which the author of the First Program has provided in respect of various commands;
(e) the keywords and syntax recognised by the First Program;
(f) the defaults which the author of the First Program has chosen to implement in the event that a particular command or option is not specified by the user;
(g) the number of iterations which the First Program will perform in certain circumstances? 

9. Is Article 2(a) [of Directive 2001/29] to be interpreted as meaning that it is an infringement of the copyright in the Manual for the author of the Second Program to reproduce or substantially reproduce in a manual describing the Second Program the keywords and syntax recognised by the First Program?’".

The Advocate General has advised the Court of Justice to rule as follows:

"1. Article 1(2) of Council Directive 91/250 ... on the legal protection of computer programs is to be interpreted as meaning that the functionalities of a computer program and the programming language are not eligible, as such, for copyright protection [No problem so far, since this seems to reflect the conventional understanding, ever since the days of the original software directive if not before, that functionality qua functionality was not copyright-protecte subject matter]. It will be for the national court to examine whether, in reproducing these functionalities in its computer program, the author of the program has reproduced a substantial part of the elements of the first program which are the expression of the author’s own intellectual creation. [Here the problems start, in so far as the AG appears to see a binary system in which a work, including a computer program, is either functional or the expression of individual creation: a trial judge is more likely to be presented with a continuum between two overlapping concepts]

2. Articles 1(2) and 6 of Directive 91/250 are to be interpreted as meaning that it is not regarded as an act subject to authorisation for a licensee to reproduce a code or to translate the form of the code of a data file format so as to be able to write, in his own computer program, a source code which reads and writes that file format, provided that that act is absolutely indispensable for the purposes of obtaining the information necessary to achieve interoperability between the elements of different programs. [Given the intention of the software as well as its actual provisions, this should not prove controversial] That act must not have the effect of enabling the licensee to recopy the code of the computer program in his own program, a question which will be for the national court to determine. 

3. Article 5(3) of Directive 91/250, read in conjunction with Articles 4(a) and (b) and 5(1) thereof, is to be interpreted as meaning that the expression ‘any of the acts of loading, displaying, running, transmitting or storing the computer program [which the person having the right] is entitled to do’ relates to the acts for which that person has obtained authorisation from the rightholder and to the acts of loading and running necessary in order to use the computer program in accordance with its intended purpose. Acts of observing, studying or testing the functioning of a computer program which are performed in accordance with that provision must not have the effect of enabling the person having a right to use a copy of the program to access information which is protected by copyright, such as the source code or the object code. [Problem here for copyright traditionalists: the words "information which is protected by copyright" seem wrong unless you consider that copyright protects information, rather than the manner in which it is expressed -- which in turn takes us back to the old arguments about the protectability of expression which is the only manner in which an idea or information is capable of being expressed, which takes us back to all that lovely idea/expression dichotomy litigation in the United States back in the previous century ...]

(4) Article 2(a) of Directive 2001/29 ... on the harmonisation of certain aspects of copyright and related rights in the information society is to be interpreted as meaning that the reproduction, in a computer program or a user manual, of certain elements described in the manual for another computer program may constitute an infringement of the copyright in the latter manual if – a question which will be for the national court to determine – the elements reproduced in this way are the expression of their author’s own intellectual creation".

Will copyright owners see red over Scarlet?

Case C‑70/10, Scarlet Extended SA v Société belge des auteurs, compositeurs et éditeurs SCRL (SABAM); Belgian Entertainment Association Video ASBL (BEA Video), Belgian Entertainment Association Music ASBL (BEA Music) and Internet Service Provider Association ASBL (ISPA) intervening is today's contribution of the Court of Justice of the European Union to its seemingly burgeoning body of copyright jurisprudence.  Its a reference for a preliminary ruling from the cour d’appel de Bruxelles (Belgium) and it looks like this:

SABAM represents authors, composers and editors of musical works in authorising the use of their copyright-protected works by third parties. Scarlet,an internet service provider, gives its customers internet access "without offering other services such as downloading or file sharing", as the court quaintly puts it. During 2004 SABAM concluded that internet users using Scarlet’s services were downloading works in SABAM’s catalogue from the internet, without authorisation and without paying royalties, by means of peer-to-peer networks -- a "transparent method of file sharing which is independent, decentralised and features advanced search and download functions". In June 2004 SABAM brought interlocutory proceedings against Scarlet before the President of the Tribunal de première instance, Brussels, claiming that that company was best placed, as an ISP, to take measures to bring to an end copyright infringements committed by its customers. SABAM asked for

• a declaration that the copyright in musical works contained in its repertoire had been infringed, in particular the right of reproduction and the right of communication to the public;
• an order requiring Scarlet to bring such infringements to an end by blocking, or making it impossible for its customers to send or receive in any way, files containing a musical work using peer-to-peer software without the permission of the rightholders, on pain of a periodic penalty;
• an order that Scarlet provide it with details of the measures that it would be applying in order to comply with the judgment to be given, on pain of a periodic penalty.

The President of the Tribunal found that copyright had been infringed but, before ruling on the application for cessation, appointed an expert to investigate whether the technical solutions proposed by SABAM were technically feasible, whether they would make it possible to filter out only unlawful file sharing, and whether there were other ways of monitoring the use of peer-to-peer software, and to determine the cost of the measures envisaged. The expert's report concluded that, despite numerous technical obstacles, the feasibility of filtering and blocking the unlawful sharing of electronic files could not be entirely ruled out. By June 2007 the President of the Tribunal accordingly ordered Scarlet to terminate the copyright infringements by making it impossible for its customers to send or receive in any way files containing a musical work in SABAM’s repertoire by means of peer-to-peer software, on pain of a periodic penalty.

Scarlet appealed on the following grounds:

• it was impossible for it to comply with that injunction since the effectiveness and permanence of filtering and blocking systems had not been proved and that the installation of the equipment for so doing was faced with numerous practical obstacles, such as problems with the network capacity and the impact on the network;
• any attempt to block the files concerned was doomed to fail in the very short term because there were at that time several peer-to-peer software products which made it impossible for third parties to check their content;
• that injunction was contrary to Article 21 of the Law of 11 March 2003 on certain legal aspects of information society services, which transposes Article 15 of Directive 2000/31(the E-Commerce Directive) into national law, because it would impose on Scarlet, de facto, a general obligation to monitor communications on its network, inasmuch as any system for blocking or filtering peer-to-peer traffic would necessarily require general surveillance of all the communications passing through its network;
• the installation of a filtering system would be in breach of the provisions of European Union law on the protection of personal data and the secrecy of communications, since such filtering involves the processing of IP addresses, which are personal data.

Faced with all these arguments, there was nothing for it but for the appeal court to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:

‘(1) Do Directives 2001/29 and 2004/48, in conjunction with Directives 95/46, 2000/31 and 2002/58, construed in particular in the light of Articles 8 and 10 of the European Convention on the Protection of Human Rights and Fundamental Freedoms, permit Member States to authorise a national court, before which substantive proceedings have been brought and on the basis merely of a statutory provision stating that: ‘They [the national courts] may also issue an injunction against intermediaries whose services are used by a third party to infringe a copyright or related right’, to order an [ISP] to install, for all its customers, in abstracto and as a preventive measure, exclusively at the cost of that ISP and for an unlimited period, a system for filtering all electronic communications, both incoming and outgoing, passing via its services, in particular those involving the use of peer-to-peer software, in order to identify on its network the movement of electronic files containing a musical, cinematographic or audio-visual work in respect of which the applicant claims to hold rights, and subsequently to block the transfer of such files, either at the point at which they are requested or at which they are sent? 

(2) If the answer to the [first] question … is in the affirmative, do those directives require a national court, called upon to give a ruling on an application for an injunction against an intermediary whose services are used by a third party to infringe a copyright, to apply the principle of proportionality when deciding on the effectiveness and dissuasive effect of the measure sought?’

This morning the Court ruled thus:

"Directives:

– 2000/31 ... on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’);

– 2001/29 ... on the harmonisation of certain aspects of copyright and related rights in the information society;

– 2004/48 ... on the enforcement of intellectual property rights ;

– 95/46 ... on the protection of individuals with regard to the processing of personal data and on the free movement of such data; and

– 2002/58 ... concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications),

read together and construed in the light of the requirements stemming from the protection of the applicable fundamental rights, must be interpreted as precluding an injunction made against an internet service provider which requires it to install a system for filtering

– all electronic communications passing via its services, in particular those involving the use of peer-to-peer software;

– which applies indiscriminately to all its customers;

– as a preventive measure;

– exclusively at its expense; and

– for an unlimited period,

which is capable of identifying on that provider’s network the movement of electronic files containing a musical, cinematographic or audio-visual work in respect of which the applicant claims to hold intellectual-property rights, with a view to blocking the transfer of files the sharing of which infringes copyright".

The ruling is surprisingly short, given that so many Directives and issues have been waved in front of the judges, and the essence of the court's decision-making process is not hard to spot. It's all about balance:

"43 The protection of the right to intellectual property is indeed enshrined in Article 17(2) of the Charter of Fundamental Rights of the European Union (‘the Charter’). There is, however, nothing whatsoever in the wording of that provision or in the Court’s case-law to suggest that that right is inviolable and must for that reason be absolutely protected.

44 As ... Case C‑275/06 Promusicae [2008] ECR I‑271 make clear, the protection of the fundamental right to property, which includes the rights linked to intellectual property, must be balanced against the protection of other fundamental rights.

45 More specifically ... national authorities and courts must strike a fair balance between the protection of copyright and the protection of the fundamental rights of individuals who are affected by such measures.

46 Accordingly ... national authorities and courts must, in particular, strike a fair balance between the protection of the intellectual property right enjoyed by copyright holders and that of the freedom to conduct a business enjoyed by operators such as ISPs pursuant to Article 16 of the Charter.

47 In the present case, the injunction requiring the installation of the contested filtering system involves monitoring all the electronic communications made through the network of the ISP concerned in the interests of those rightholders. Moreover, that monitoring has no limitation in time, is directed at all future infringements and is intended to protect not only existing works, but also future works that have not yet been created at the time when the system is introduced.

48 Accordingly, such an injunction would result in a serious infringement of the freedom of the ISP concerned to conduct its business since it would require that ISP to install a complicated, costly, permanent computer system at its own expense, which would also be contrary to the conditions laid down in Article 3(1) of Directive 2004/48, which requires that measures to ensure the respect of intellectual-property rights should not be unnecessarily complicated or costly.

49 ...  the injunction to install the contested filtering system is to be regarded as not respecting the requirement that a fair balance be struck between, on the one hand, the protection of the intellectual-property right enjoyed by copyright holders, and, on the other hand, that of the freedom to conduct business enjoyed by operators such as ISPs.

50 Moreover, the effects of that injunction would not be limited to the ISP concerned, as the contested filtering system may also infringe the fundamental rights of that ISP’s customers, namely their right to protection of their personal data and their freedom to receive or impart information, which are rights safeguarded by Articles 8 and 11 of the Charter respectively.

51 It is common ground, first, that the injunction requiring installation of the contested filtering system would involve a systematic analysis of all content and the collection and identification of users’ IP addresses from which unlawful content on the network is sent. Those addresses are protected personal data because they allow those users to be precisely identified.

52 Secondly, that injunction could potentially undermine freedom of information since that system might not distinguish adequately between unlawful content and lawful content, with the result that its introduction could lead to the blocking of lawful communications. Indeed, it is not contested that the reply to the question whether a transmission is lawful also depends on the application of statutory exceptions to copyright which vary from one Member State to another. Moreover, in some Member States certain works fall within the public domain or can be posted online free of charge by the authors concerned.

53 Consequently ... in adopting the injunction requiring the ISP to install the contested filtering system, the national court concerned would not be respecting the requirement that a fair balance be struck between the right to intellectual property, on the one hand, and the freedom to conduct business, the right to protection of personal data and the freedom to receive or impart information, on the other".

This blogger suspects that SABAM and other agencies will not shrink from seeking injunctive relief which requires filtering until they have first noted how carefully and narrowly the active part of the judgment has been drawn, how many invitations it appears to make in order to accommodate those who seek to modify their enforcement demands, and how the fate of the enforcement action may be contrasted with the approach taken in the British courts in Newzbin 2.

Bonnier AG: "it's lawful if you do it lawfully .."

Case C-461/10 Bonnier Audio AB, Earbooks AB, Norstedts Förlagsgrupp AB, Piratförlaget Aktiebolag, Storyside AB v Perfect Communication Sweden AB is a reference to the Court of Justice of the European Union for a preliminary ruling which originates from the Swedish Högsta domstolen. Two questions were referred:

"1. Does Directive 2006/24 ... on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC (the data storage directive), and in particular Articles 3, 4, 5 and 11 thereof, preclude the application of a national provision which is based on Article 8 of Directive 2004/48 ...on the enforcement of intellectual property rights and which permits an internet service provider in civil proceedings, in order to identify a particular subscriber, to be ordered to give a copyright holder or its representative information on the subscriber to whom the internet service provider provided a specific IP address, which address, it is claimed, was used in the infringement? The question is based on the assumption that the applicant has adduced evidence of the infringement of a particular copyright and that the measure is proportionate. 

2. Is the answer to Question 1 affected by the fact that the Member State has not implemented the data storage directive despite the fact that the period prescribed for implementation has expired?"

Today the Advocate General's Opinion was published in eight languages, none of them English. The advice given in the French version:

" La directive 2006/24 ...  modifiant la directive 2002/58/CE, ne s’applique pas au traitement des données à caractère personnel à d’autres fins que celles visées à l’article 1er, paragraphe 1, de cette directive. Par conséquent, ladite directive ne s’oppose pas à l’application d’une disposition nationale au titre de laquelle, dans le cadre d’une procédure civile, aux fins d’identifier un abonné déterminé, le juge enjoint à un fournisseur d’accès à Internet de divulguer au titulaire de droits d’auteur, ou à son ayant droit, des informations relatives à l’identité de l’abonné à qui ledit opérateur a attribué une adresse IP qui aurait servi à l’atteinte audit droit. Toutefois, ces informations doivent avoir été conservées pour pouvoir être divulguées et utilisées à cette fin conformément à des dispositions législatives nationales détaillées, qui ont été adoptées dans le respect du droit de l’Union en matière de protection des données à caractère personnel."

This being so, there is no need to answer the second question.  Google Translate renders this as follows:

"Directive 2006/24 ... and amending Directive 2002/58/EC does not apply to the processing of personal data for purposes other than those referred to in Article 1, paragraph 1 of this Directive. Therefore, the directive does not preclude the application of a national provision under which, in the context of civil proceedings, in order to identify a specific subscriber, the judge ordered a provider access to the Internet to disclose to the holder of copyright, or his successor in title, information concerning the identity of the subscriber to whom the trader has allocated an IP address that would have been used to achieve that right. However, this information must be retained in order to be disclosed and used for this purpose in accordance with detailed national legislation, which were adopted in compliance with EU law on the protection of personal data".

In other words, ordering an internet service provider to divulge subscriber information is lawful, as long as it's done lawfully.

We await further developments -- and corrections to the translation, if relevant.

TvCatchup and online streaming: "communication to the public" is not a repeat

Courtesy of a news flash from Hogarth Chambers, the 1709 Blog has learned that Mr Justice Floyd yesterday handed down a further judgment in ITV Broadcasting & others v TvCatchup, in the Chancery Division, England and Wales.  As this media release explains:

"The ruling asks the European Court to determine whether live internet streaming of free-to-air TV channels is lawful. 

The Defendant, TVC, operates a website through which viewers can watch live streams of some free-to-air-televisions channels. The Claimants, a collection of broadcasters and TV content providers, alleged that TVC had infringed their copyrights in films and broadcasts by reproduction and by communication to the public. TVC denied infringement and, alternatively, relied on a defence relating to transient copies (under s.28A of the Copyright Designs and Patents Act 1988) and a defence that permits the cable retransmission of some broadcasts within their intended reception areas (under s.73). 

Floyd J gave a first judgment on 18 July 2011, in which he proposed a reference to the Court of
Justice of the European Union (“CJEU”). A further hearing was convened to consider the impact on that potential reference of the earlier decisions of the CJEU in Football Association Premier League Ltd and others v QC Leisure and others (Joined Cases C-403/08 and C-429/08 – “FAPL” [see 1709 Blog note here and comment here]) and in Airfield NC and Canaal Digital NV v Sabam and Airfield NV v Agicoa Belgium BVBA (Joined Cases C-431/09 and C-432/09 – “Airfield”). 

The Claimants submitted that the decisions in FAPL and Airfield meant that no reference was needed on the issue of communication to the public. Floyd J disagreed: the CJEU’s decision in Airfield did not make it easy to distill a clear principle as to what amounts to a communication to the public in the  context of this case. A question, as set out in paragraph 24 of the judgment, will therefore be referred on this issue. 

Floyd J held that reproduction by the creation of “rolling copies” of films and broadcasts was
rendered acte clair by FAPL, as was TVC’s s.28A defence, although its applicability will depend upon the result of the communication to the public reference. A further reference on the construction of s.73 was refused: this was a question for the national court.".

The actual wording of the referred question can be found in paragraph 24:

"“Does the right to authorise or prohibit a "communication to the public of their works by wire or wireless means" in Article 3.1 of the Directive extend to a case where: 

(i) Authors authorise the inclusion of their works in a terrestrial free to air television broadcast which is intended for reception either throughout the territory of a Member State or within a geographical area within a Member State; 

(ii) A third party (i.e. an organisation other than the original broadcaster), provides a service whereby individual subscribers within the intended area of reception of the broadcast who could lawfully receive the broadcast on a television receiver in their own homes may log on to the third party's server and receive the content of the broadcast by means of an internet stream? 

Does it make any difference to the answer to the above question if: 

(a) The third party's server allows only a "one to one" connection for each subscriber whereby each individual subscriber establishes his or her own internet connection to the server and every data packet sent by the server onto the internet is addressed to only one individual subscriber? 

(b) The third party's service is funded by advertising which is presented "pre roll" (i.e. during the period of time after a subscriber logs on but before he or she begins to receive the broadcast content) or "in skin" (i.e. within the frame of the viewing software which displays the received programme on the subscriber's viewing device but outside the programme picture) but the original advertisements contained within the broadcast are presented to the subscriber at the point where they are inserted in the programme by the broadcaster? 

(c) the intervening organisation is: 

(i) providing an alternative service to that of the original broadcaster, thereby acting in competition with the original broadcaster for viewers; or 

(ii) acting in competition with the original broadcaster for advertising revenues?".

Hogarth have kindly made a copy of this judgment available as a 10-page Word document on their website here.
There's some background to this dispute on the IPKat weblog here.

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.

ECJ upholds AG opinion; no copyright in football matches?

The ECJ judgment in QC Leisure is just in. You can read it in full here.

Press release pasted in full below - comment to follow.

"A system of licences for the broadcasting of football matches which grants broadcasters territorial exclusivity on a Member State basis and which prohibits television viewers from watching the broadcasts with a decoder card in other Member States is contrary to EU law

The screening in a pub of football-match broadcasts containing protected works requires the authorisation of the author of those works

The Football Association Premier League (‘the FAPL’) runs the Premier League, the leading professional football league competition in England, and markets the television broadcasting rights for Premier League matches. It grants broadcasters, under an open competitive tender procedure, an exclusive live broadcasting right for Premier League matches on a territorial basis. As the territorial basis generally corresponds to a single Member State, television viewers can watch only the matches transmitted by the broadcasters established in the Member State where they reside.

In order to protect such territorial exclusivity and to prevent the public from receiving broadcasts outside the relevant Member State, each broadcaster undertakes, in the licence agreement concluded with the FAPL, to encrypt its satellite signal and to transmit the signal, so encrypted, by satellite solely to subscribers in the territory which it has been awarded. Consequently, the licence agreement prohibits the broadcasters from supplying decoder cards to persons who wish to watch their broadcasts outside the Member State for which the licence is granted.

The disputes giving rise to the present cases concern attempts to circumvent that exclusivity. Certain pubs in the United Kingdom have begun to use foreign decoder cards, issued by a Greek broadcaster to subscribers resident in Greece, to access Premier League matches. The pubs buy a card and a decoder box from a dealer at prices lower than those of Sky, the holder of the broadcasting rights in the United Kingdom.

Since the FAPL takes the view that such activities undermine the exclusivity of the television broadcasting rights and the value of those rights, it is seeking to bring them to an end by means of legal proceedings. The first case (C-403/08) concerns a civil action brought by the FAPL against pubs that have screened Premier League matches by using Greek decoder cards and against the suppliers of such decoder cards to those pubs. The second case (C-429/08) has arisen from criminal proceedings against Karen Murphy, the landlady of a pub that screened Premier League matches using a Greek decoder card. In those two cases, the High Court of Justice of England and Wales has referred a number of questions concerning the interpretation of European Union law to the Court of Justice.

In its judgment delivered today, the Court of Justice holds that national legislation which prohibits the import, sale or use of foreign decoder cards is contrary to the freedom to provide services and cannot be justified either in light of the objective of protecting intellectual property rights or by the objective of encouraging the public to attend football stadiums.

So far as concerns the possibility of justifying that restriction in light of the objective of protecting intellectual property rights, the Court observes that the FAPL cannot claim copyright in the Premier League matches themselves, as those sporting events cannot be considered to be an author’s own intellectual creation and, therefore, to be ‘works’ for the purposes of copyright in the European Union.

Also, even if national law were to confer comparable protection upon sporting events – which would, in principle, be compatible with EU law – a prohibition on using foreign decoder cards would go beyond what is necessary to ensure appropriate remuneration for the holders of the rights concerned.

In this regard, the Court observes, first, that when calculating such appropriate remuneration it is possible to take account of the actual and potential audience both in the Member State of broadcast and in any other Member State where the broadcasts are received, and that it is thus not necessary to limit the free movement of services within the European Union. Second, payment by the television stations of a premium in order to ensure themselves absolute territorial exclusivity goes beyond what is necessary to ensure the right holders appropriate remuneration, because such a practice may result in artificial price differences between the partitioned national markets. Such partitioning and such an artificial price difference are irreconcilable with the fundamental aim of the Treaty, which is completion of the internal market.

For similar reasons, a system of exclusive licences is also contrary to European Union competition law if the licence agreements prohibit the supply of decoder cards to television viewers who wish to watch the broadcasts outside the Member State for which the licence is granted.

It is true that European Union competition law does not, in principle, preclude a right holder from granting to a sole licensee the exclusive right to broadcast protected subject-matter by satellite, during a specified period, from a single Member State of broadcast or from a number of Member States of broadcast. However, the licence agreements must not prohibit the broadcasters from effecting any cross-border provision of services that relates to the sporting events concerned, because such an agreement would enable each broadcaster to be granted absolute territorial exclusivity in the area covered by its licence, would therefore eliminate all competition between broadcasters in the field of those services and would thus partition the national markets in accordance with national borders.

Finally, as regards the questions asked concerning the interpretation of the Copyright Directive, the Court notes first of all that only the opening video sequence, the Premier League anthem, pre-recorded films showing highlights of recent Premier League matches and various graphics can be regarded as ‘works’ and are therefore protected by copyright. By contrast, the matches themselves are not works enjoying such protection.

That being so, the Court decides that transmission in a pub of the broadcasts containing those protected works, such as the opening video sequence or the Premier League anthem, constitutes a ‘communication to the public’ within the meaning of the copyright directive, for which the authorisation of the author of the works is necessary, because when a pub transmits those works to the customers present on the premises the works are transmitted to an additional public which was not considered by the authors when they authorised the broadcasting of their works".

Directors' rights: the AG speaks ... but not in English

In July 2010 the 1709 Blog noted the reference for a preliminary ruling from the Handelsgericht Vienna (Austria) in Case C-277/10 Martin Luksan v Petrus van der Let. To refresh readers' memories, the questions referred were these:

1. Must the provisions of European Union law concerning copyright and related rights, and in particular Article 2(2), (5) and (6) of Directive 92/100 [on rental right and lending right and on certain rights related to copyright in the field of intellectual property], Article 1(5) of Directive 93/83/EEC [on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission] and Article 2(1) of Directive 2006/116 [this being the codified version of the Directive on the term of protection of copyright and certain related rights], in conjunction with Article 4 of Directive 92/100, Article 2 of Directive 93/83 and Articles 2 and 3 and Article 5(2)(b) of Directive 2001/29 [on the harmonisation of certain aspects of copyright and related rights in the information society], be interpreted as meaning that the principal director of a cinematographic or audiovisual work or other authors of films designated by the legislatures of the Member States are directly (primarily) entitled in all events, by law, to the exploitation rights in respect of reproduction, satellite broadcasting and other communication to the public through the making available to the public and that the film-maker is not entitled thereto directly (primarily) and exclusively;

Are laws of the Member States which assign the exploitation rights by law directly (primarily) and exclusively to the film-maker inconsistent with European Union law? 

If the answer to Question 1 is in the affirmative: 

2a. Does European Union law grant the legislatures of the Member States the option of providing for a legal presumption in favour of a transfer to the film-maker of the exploitation rights within the meaning of paragraph 1 to which the principal director of a cinematographic or audiovisual work or other authors of films designated by the legislatures of the Member States are entitled, even in respect of rights other than rental and lending rights, and if so, must the conditions laid down in Article 2(5) and (6) of Directive 92/100, in conjunction with Article 4 of that directive, be satisfied? 

2b. Must the primary ownership of rights of the principal director of a cinematographic or audiovisual work, or of other authors of films designated by the legislature of a Member State also be applied to the rights granted by the legislature of a Member State to equitable remuneration, such as 'empty cassette remuneration' pursuant to Paragraph 42b of the Austrian Urhebergesetz (Copyright law), or to rights to fair compensation within the meaning of Article 5(2)(b) of Directive 2001/29? 

If the answer to Question 2b is in the affirmative: 

3. Does European Union law grant the legislatures of the Member States the option of providing for a legal presumption in favour of a transfer to the film-maker of the rights to remuneration within the meaning of paragraph 2 to which the principal director of a cinematographic or audiovisual work or other authors of films designated by the legislatures of the Member States are entitled, and if so, must the conditions laid down in Article 2(5) and (6) of Directive 92/100, in conjunction with Article 4 of that directive, be satisfied? 

If the answer to Question 3 is in the affirmative: 

4. If a legal provision of a Member State accords to the principal director of a cinematographic or audiovisual work or other authors of films designated by the legislatures of the Member States a right to half of the statutory rights to remuneration, but provides that that right is capable of alteration and not therefore unwaivable, is that provision consistent with the aforementioned provisions of European Union law in the area of copyright and related rights?

If you're still following all of this, you will probably want to know that the Advocate General delivered  her Opinion yesterday, but that it is sadly available in only seven official languages of the European Union [including Latvian and Portuguese] -- and not in English.

The Opinion is a long one (179 paragraphs). In French it goes like this:

"1. Les dispositions combinées de l’article premier, paragraphe 5, et de l’article 2 de la directive 93/83 et les dispositions combinées de l’article 2, paragraphe 1, de la directive 2006/116 et des articles 2 et 3 de la directive 2001/29 doivent être interprétées en ce sens que le réalisateur principal est l’auteur du film au sens de ces dispositions et que, par conséquent, les droits d’exploitation de la reproduction, de la diffusion par satellite, et de toute autre communication au public par voie de mise à disposition lui reviennent.

2. Toutefois, en vertu de l’article 14bis, paragraphe 2, sous b) à d), et paragraphe 3, de la convention de Berne, les États membres ont la faculté de prévoir une disposition attribuant directement (originairement) et exclusivement les droits d’exploitation au producteur du film , à condition que

– le producteur et le réalisateur du film aient conclu un contrat par lequel ce dernier s’engage à apporter sa contribution à la production de l’œuvre cinématographique;

– il soit possible de conclure des conventions contraires réservant les droits d’exploitation exclusif ou l’exercice de ces droits au réalisateur principal;

– les États membres garantissent que, dans ce cas, l’auteur du film, obtienne une compensation équitable au sens de l’article 17, paragraphe 1, deuxième phrase, de la chartre.

3. Lorsque les États membres prévoient, en vertu de l’article 5, paragraphe 2, sous b), de la directive 2001/29, une limitation du droit de reproduction de l’auteur du film, en vertu de l’article 2, sous a), de la directive 2001/29, pour les reproductions destinées à un usage privé, ils doivent lui garantir une compensation équitable. Dès lors que cela est garanti, ces dispositions ne s’opposent pas à une disposition de droit national attribuant originairement au producteur du film les droits sur les copies destinées à un usage privé.

4. L’article 5, paragraphe 2, sous b), et l’article 2, sous a), de la directive 2001/29 doit être interprété en ce sens qu’il s’oppose à une disposition de droit national, accordant le droit de l’auteur du film à une rémunération équitable respectivement pour moitié à l’auteur et au producteur, en conséquence de quoi l’auteur n’obtient que la moitié de la rémunération équitable".

A slightly tickled-up version of Google Translate renders it thus:

"1. The combined provisions of Article I, paragraph 5, and Article 2 of Directive 93/83 and the combined provisions of Article 2, paragraph 1 of Directive 2006/116 and Articles 2 and 3 Directive 2001/29 must be interpreted as meaning that the principal [director] is the author of the film within the meaning of these provisions and, therefore, the operating rights of reproduction, satellite broadcasting, and any other communication to the public by making available to him back.

2. However, under Article 14bis, paragraph 2, b) to d) and paragraph 3 of the Berne Convention, Member States have the option to include a provision giving directly (originally) and exclusively the rights of operation to the film producer, provided that

- Producer and director of the film have reached an agreement whereby the latter undertakes to contribute to the production of the film;

- It is possible to conclude agreements to the contrary, any rights of exclusive use or enjoyment of those rights to the principal;

- Member States shall ensure that, in this case, the author of the film, get fair compensation within the meaning of Article 17, paragraph 1, second sentence of the charter.

3. When Member States shall, under Article 5, paragraph 2 b) of Directive 2001/29, a limitation of the reproduction right of the author of the film, under Article 2 a) of Directive 2001/29, for reproductions for private use, they need to guarantee fair compensation. Once this is guaranteed, these provisions do not preclude a provision of national law originally attributed to the film producer duties on copies for private use.

4. Article 5, paragraph 2, b) and Article 2 a) of Directive 2001/29 must be interpreted as precluding a provision of national law, granting the right the author of the film to a fair remuneration for half respectively to the author and the producer, with the result that the author gets only half of the equitable remuneration".

This blogger is unwilling to comment on the basis of an unofficial translation, but he gets the impression that the Advocate General is recommending a creator-friendly and flexible interpretation of the relevant provisions. He invites those who are more linguistically competent to tell us what the Opinion really means.

Thuiskopie, Opus and the private copying levy: what next?

Yesterday the Court of Justice of the European Union gave judgment in Case C-462/09 Stichting de Thuiskopie v Opus Supplies Deutschland GmbH, Mijndert van der Lee and Hananja van der Lee, a reference for a preliminary ruling from the Hoge Raad der Nederlanden (the Dutch Supreme Court).  This reference turned on Article 16c(1) of the Dutch copyright law, which provided an exception to copyright in favour of copying for private use. Article 16(2) additionally provides that a maker or importer of an item used for reproduction must pay a private copying levy. Stichting de Thuiskopie is the Dutch body responsible for recovering the private copying levy; Opus, a company based in Germany, sells blank media online via Dutch-language websites that target Netherlands consumers. Opus traded on terms that, where a Dutch consumer placed an order online, that order was processed in Germany and the goods were delivered from Germany to the Netherlands, on behalf of and in the name of the customer, by a carrierg engaged by Opus.

Opus paid no private copying levy in respect of the media delivered to its customers in the Netherlands, either in that Member State or in Germany; the cost of the reproduction media sold by Opus did not therefore include any element corresponding to the private copying levy.

Arguing that Opus had to be regarded as the ‘importer’ and, consequently, responsible for paying the private copying levy, the Stichting sued for payment of that levy. Opus denied liability, saying it couldn't be classified as an importer into the Netherlands of the reproduction media which it sold and that it was individual Dutch consumers who must be classified as importers. The trial court and first appellate court agreed with Opus, following which the Stichting appealed to the Hoge Raad. That court referred the following questions to the Court of Justice for a preliminary ruling:

‘(1) Does [the InfoSoc] Directive [2001/29], in particular Article 5(2)(b) and (5) thereof,  provide any assistance in determining who should be regarded under national law as owing the “fair compensation” referred to in Article 5(2)(b)? If so, what assistance does it provide? 

(2) In a case of distance selling in which the buyer is established in a different Member State to that of the seller, does Article 5(5) of Directive [2001/29] require national law to be interpreted so broadly that a person owing the “fair compensation” referred to in Article 5(2)(b) of the directive who is acting on a commercial basis owes such compensation in at least one of the Member States involved in the distance selling?’

The Court ruled today as follows:

"1. Directive 2001/29 ..., in particular Article 5(2)(b) and (5) thereof, must be interpreted as meaning that the final user who carries out, on a private basis, the reproduction of a protected work must, in principle, be regarded as the person responsible for paying the fair compensation provided for in Article 5(2)(b). 

However, it is open to the Member States to establish a private copying levy chargeable to the persons who make reproduction equipment, devices and media available to that final user, since they are able to pass on the amount of that levy in the price paid by the final user for that service. 

2. Directive 2001/29, in particular Article 5(2)(b) and (5) thereof, must be interpreted as meaning that it is for the Member State which has introduced a system of private copying levies chargeable to the manufacturer or importer of media for reproduction of protected works, and on the territory of which the harm caused to authors by the use for private purposes of their work by purchasers who reside there occurs, to ensure that those authors actually receive the fair compensation intended to compensate them for that harm. In that regard, the mere fact that the commercial seller of reproduction equipment, devices and media is established in a Member State other than that in which the purchasers reside has no bearing on that obligation to achieve a certain result. It is for the national court, where it is impossible to ensure recovery of the fair compensation from the purchasers, to interpret national law in order to allow recovery of that compensation from the person responsible for payment who is acting on a commercial basis."

Public comments from the English-speaking rights management and collection sectors are keenly awaited. Meanwhile, the Court's ruling looks like the source of major headaches for national legislatures (how to provide a scheme which ensures that authors actually receive the fair compensation), courts (how to achieve an appropriate means of enforcing local and EU law in respect of payment which may have to be recovered from a supplier which has no place of business in the jurisdiction or indeed anywhere but cyberspace) and authors and bodies collecting for them (how to identify chargeable uses and then to quantify payments).