CJEU AG Cruz Villalón confirms that private copying levies may be imposed on memory cards for mobile phones

On 18 June 2014, Advocate General (AG) Cruz Villalón issued his Opinion in Case C-463/12, Copydan Båndkopi v. Nokia Danmark A/S, a reference for a preliminary ruling from the Danish High Court.

Copydan Båndkopi, a Danish collective management organisation (CMO), asked Nokia to pay a private copying levy for the reproduction of music and videos over the memory cards for mobile phones that it imported and marketed in Denmark between 2004 and 2009. Litigation ensued over Nokia’s refusal.

The AG rephrased the referred questions as follows:

1. May private copying levies be imposed on memory cards for mobile phones?
2. Do technological protection measures affect the amount of the levy?
3. How are the levies to be paid?

In the opinion of the AG, Article 5(2)(b) of the EU Information Society Directive 2001/29/EC does not prevent national legislation that imposes a balanced levy on memory cards for mobile phones (cf. para. 39 of the Opinion). However, this precludes national legislation which imposes levies on memory cards for mobile phones, but excludes non-removable media for integrated devices or equipment specifically designed and used primarily for private purposes, when this exclusion is not objectively justified (cf. para. 53 of the Opinion).

Also, according to the AG, private copying levies under Article 5(2)(b) do not apply to uses which are explicitly authorised by the rightholders and in case some sort of payment or fair compensation has already been paid (cf. para. 68 of the Opinion).

As to the question whether the (non-) presence of technological protection measures may affect the amount of the levy, this should not be the case, according to the AG (cf. para. 80 of the Opinion).

Finally, according to the AG, Directive 2001/29/EC does not preclude national legislation which provides for the collection of private copying levies from producers and importers of media devices, provided that these can pass it on users (cf. para. 112 of the Opinion).

The AG Opinion, which is non-binding on the CJEU, can be found in several languages (but not yet in English) here.