COPYRIGHT : PRIVATE COPYING: COURT IMPOSES OBLIGATION TO ACHIEVE RESULT.

In the EU, authors must receive 'fair compensation' for private copying of their protected works by consumers in the 20 member states that authorise this exception to copyright. These states consequently have an "obligation to achieve a certain result," including at internal market level. This is the gist of an eagerly awaited ruling handed down by the EU Court of Justice, on 16 June (1). The decision adds input to the stormy debate over private copying, which the European Commission is striving to rekindle.

The dispute pitted Stichting de Thuiskopie, the Dutch body that collects the private copying levy, against Opus, a German company that sells reproduction material via the internet (DVDs, MP3s, printers, etc). Opus operates in the Netherlands via websites targeting the Dutch public.

Under the legislation of the Netherlands, the manufacturer or importer of the reproduction material must pay the levy. Opus, however, which processes orders in Germany and ships them to the Netherlands, refused to pay the levies. The Stichting therefore lodged a complaint claiming that Opus must be considered as the 'importer' and, as such, liable for payment of the private copying levy.

The Stichting was initially non-suited in the Netherlands. Before turning to the EU Court of Justice, the Supreme Court of the Netherlands noted that it was difficult to charge the levy to the buyer - as the importer - since the individual buyer "cannot in practice easily be identified".

The 2001 EU directive on copyright does not specify who should pay the 'fair compensation' due to the artist, states the court. It nevertheless refers to its judgement - in the Padawan case of October 2010 (see Europolitics 4069) - that this fair compensation must be considered as recompense for the harm suffered by the author. The private buyer should therefore have to pay. However, considering the practical difficulty identifying the private buyer, the member states are at liberty to "establish a private copying levy for the purposes of financing fair compensation, chargeable not to the private persons concerned but to those who have the digital reproduction equipment, devices...