Verwertungsgesellschaft Wort (VG Wort) v Kyocera and Others (C-457/11) and Canon Deutschland GmbH (C-458/11), and Fujitsu Technology Solutions GmbH (C-459/11) and Hewlett-Packard GmbH (C-460/11) v Verwertungsgesellschaft Wort (VG Wort).

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Writing for the Court: Malenovský
• ECLI: ECLI:EU:C:2013:426
• Date: 27 June 2013
• Docket Number: C‑457/11,C‑460/11
• Procedure Type: Reference for a preliminary ruling

JUDGMENT OF THE COURT (Fourth Chamber)

27 June 2013 ( *1 )

‛Intellectual and industrial property — Copyright and related rights in the information society — Directive 2001/29/EC — Reproduction right — Fair compensation — Concept of ‘reproductions on paper or any similar medium, effected by the use of any kind of photographic technique or by some other process having similar effects’ — Consequences of the non-application of technological measures which are available to prevent or restrict unauthorised acts — Consequences of an express or implied authorisation to reproduce’

In Joined Cases C-457/11 to C-460/11,

REQUESTS for a preliminary ruling under Article 267 TFEU from the Bundesgerichtshof (Germany), made by decision of 21 July 2011, received at the Court on 5 September 2011, in the proceedings

Verwertungsgesellschaft Wort (VG Wort)

v

Kyocera, formerly Kyocera Mita Deutschland GmbH,

Epson Deutschland GmbH,

Xerox GmbH (C-457/11),

Canon Deutschland GmbH (C-458/11),

and

Fujitsu Technology Solutions GmbH (C-459/11),

Hewlett-Packard GmbH (C-460/11),

v

Verwertungsgesellschaft Wort (VG Wort),

THE COURT (Fourth Chamber),

composed of L. Bay Larsen, President of the Chamber, J. Malenovský (Rapporteur), U. Lõhmus, M. Safjan and A. Prechal, Judges,

Advocate General: E. Sharpston,

Registrar: K. Malacek, Administrator,

having regard to the written procedure and further to the hearing on 22 October 2012,

after considering the observations submitted on behalf of:

— Verwertungsgesellschaft Wort (VG Wort), by U. Karpenstein, G. Schulze and R. Staats, Rechtsanwälte,

— Fujitsu Technology Solutions GmbH, by C. Frank, Rechtsanwalt,

— Hewlett-Packard GmbH, by G. Berrisch and A. Strowel, Rechtsanwälte,

— Kyocera (formerly Kyocera Mita Deutschland GmbH), Epson Deutschland GmbH, Xerox GmbH and Canon Deutschland GmbH, by C. Lenz and T. Würtenberger, Rechtsanwälte,

— the German Government, by T. Henze and J. Kemper, acting as Agents,

— the Czech Government, by D. Hadroušek, acting as Agent,

— the Spanish Government, by N. Díaz Abad, acting as Agent,

— Ireland, by D. O’Hagan, acting as Agent,

— the Lithuanian Government, by R. Mackevičienė and R. Vaišvilienė, acting as Agents,

— the Netherlands Government, by B. Koopman, C. Wissels and M. Bulterman, acting as Agents,

— the Austrian Government, by A. Posch, acting as Agent,

— the Polish Government, by B. Majczyna, acting as Agent,

— the Finnish Government, by M. Pere, acting as Agent,

— the United Kingdom Government, by L. Seeboruth, acting as Agent, and S. Malynicz, Barrister,

— the European Commission, by J. Samnadda and F. Bulst, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 24 January 2013,

gives the following

Judgment

1 These requests for a preliminary ruling concern the interpretation of Articles 5 and 6 of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (OJ 2001 L 167, p. 10).

2 The requests have been made in proceedings between, on the one hand, Verwertungsgesellschaft Wort (VG Wort) and, on the other, Kyocera, formerly Kyocera Mita Deutschland GmbH (‘Kyocera’), Epson Deutschland GmbH (‘Epson’) and Xerox GmbH (‘Xerox’), in Case C-457/11, and Canon Deutschland GmbH, in Case C-458/11, and between, on the one hand, Fujitsu Technology Solutions GmbH (‘Fujitsu’) and Hewlett Packard GmbH and, on the other, VG Wort, in Cases C-459/11 and C-460/11, respectively, concerning the remuneration that those businesses would be obliged to pay to VG Wort due to the placing on the market of printers and/or plotters and of personal computers.

Legal context

European Union law

3 Recitals 2, 5, 35, 36, 39 and 52 in the preamble to Directive 2001/29 are worded as follows: ‘(2) The European Council, meeting at Corfu on 24 and 25 June 1994, stressed the need to create a general and flexible legal framework at Community level in order to foster the development of the information society in Europe. This requires, inter alia, the existence of an internal market for new products and services. Important Community legislation to ensure such a regulatory framework is already in place or its adoption is well under way. Copyright and related rights play an important role in this context as they protect and stimulate the development and marketing of new products and services and the creation and exploitation of their creative content. … (5) Technological development has multiplied and diversified the vectors for creation, production and exploitation. While no new concepts for the protection of intellectual property are needed, the current law on copyright and related rights should be adapted and supplemented to respond adequately to economic realities such as new forms of exploitation. … (35) In certain cases of exceptions or limitations, rightholders should receive fair compensation to compensate them adequately for the use made of their protected works or other subject-matter. When determining the form, detailed arrangements and possible level of such fair compensation, account should be taken of the particular circumstances of each case. When evaluating these circumstances, a valuable criterion would be the possible harm to the rightholders resulting from the act in question. In cases where rightholders have already received payment in some other form, for instance as part of a licence fee, no specific or separate payment may be due. The level of fair compensation should take full account of the degree of use of technological protection measures referred to in this Directive. In certain situations where the prejudice to the rightholder would be minimal, no obligation for payment may arise. (36) The Member States may provide for fair compensation for rightholders also when applying the optional provisions on exceptions or limitations which do not require such compensation. … (39) When applying the exception or limitation on private copying, Member States should take due account of technological and economic developments, in particular with respect to digital private copying and remuneration schemes, when effective technological protection measures are available. Such exceptions or limitations should not inhibit the use of technological measures or their enforcement against circumvention. … (52) When implementing an exception or limitation for private copying in accordance with Article 5(2)(b), Member States should likewise promote the use of voluntary measures to accommodate achieving the objectives of such exception or limitation. If, within a reasonable period of time, no such voluntary measures to make reproduction for private use possible have been taken, Member States may take measures to enable beneficiaries of the exception or limitation concerned to benefit from it. Voluntary measures taken by rightholders, including agreements between rightholders and other parties concerned, as well as measures taken by Member States, do not prevent rightholders from using technological measures which are consistent with the exceptions or limitations on private copying in national law in accordance with Article 5(2)(b), taking account of the condition of fair compensation under that provision and the possible differentiation between various conditions of use in accordance with Article 5(5), such as controlling the number of reproductions. In order to prevent abuse of such measures, any technological measures applied in their implementation should enjoy legal protection.’

4 Under Article 2 of Directive 2001/29: ‘Member States shall provide for the exclusive right to authorise or prohibit direct or indirect, temporary or permanent reproduction by any means and in any form, in whole or in part: (a) for authors, of their works; (b) for performers, of fixations of their performances; (c) for phonogram producers, of their phonograms; (d) for the producers of the first fixations of films, in respect of the original and copies of their films; (e) for broadcasting organisations, of fixations of their broadcasts, whether those broadcasts are transmitted by wire or over the air, including by cable or satellite.’

5 Article 5(2) of Directive 2001/29 provides: ‘Member States may provide for exceptions or limitations to the reproduction right provided for in Article 2 in the following cases: (a) in respect of reproductions on paper or any similar medium, effected by the use of any kind of photographic technique or by some other process having similar effects, with the exception of sheet music, provided that the rightholders receive fair compensation; (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; (c) in respect of specific acts of reproduction made by publicly accessible libraries, educational establishments or museums, or by archives, which are not for direct...