The Court of Justice of the European Union (CJEU) has delivered today its decision in Case C-435/12 (ACI Adam BV and Others v Stichting de Thuiskopie, Stichting Onderhandelingen Thuiskopie vergoeding), in which it ruled that unlawful reproductions cannot be taken into account when calculating the amount of the private copying levy under the exception laid down in Article 5, paragraph 2, subparagraph b of Directive 2001/29/EC.
The Court was asked to decide whether the Dutch foundation that has to determine the amount of the private copying levy could, when determining the amount, take into account the harm suffered by rightholders as the result of copies made from lawful and unlawful sources. The Court answered that private copying exceptions can only apply to reproductions made from lawful sources.
More specifically, the Court ruled the following:
- In reply to the question as to whether Article 5 (5) of Directive 2001/29 could lead to broadening or restricting the scope of exceptions and limitations under Article 5 (2), the CJEU makes it clear that “Article 5(5) of Directive 2001/29 is not intended either to affect the substantive content of provisions falling within the scope of Article 5(2) of that directive or, inter alia, to extend the scope of the different exceptions and limitations provided for therein” (point 26).
- The Court then acknowledges that Member States have a freedom to introduce exceptions and limitations under Article 5(2); and when they choose to do so, they cannot allow reproductions made from unlawful sources since “the result of that would clearly be detrimental to the proper functioning of the internal market” (point 35).
- The Court concludes that “national legislation which makes no distinction between private copies made from lawful sources and those made from counterfeited or pirated sources cannot be tolerated” (point 37). The fair balance between the rights and interests of rightholders and of users is not respected when users have also to pay a compensation for reproductions made from unlawful sources: all users are “indirectly penalised” under such a system.