Publishers should not be the beneficiaries of any fair compensation, says the European Copyright Society

As summer is sadly approaching its end, there may be nonetheless some reasons not to feel completely blue, one of these being that the Court of Justice of the European Union (CJEU) has just resumed its activity.

Whilst the next few months promise to be enriched by a number of IP judgments, the IPKat learned over the weekend that the European Copyright Society (ECS) [yes, the guys of - among other things - the Opinion in Svensson, here] has just issued another assessment of a case currently pending before the CJEU, this being HP Belgium v Reprobel, C-572/13.

This is a reference for a preliminary ruling from the Brussels Court of Appeal, seeking clarification as regards an evergreen topic in EU copyright, ie the fair compensation requirement in the reprography and private copying exceptions within Article 5(2)(a) and (b) of Directive 2001/29 (the InfoSoc Directive), respectively.

In particular, the questions referred are the following:

1.    Must the term ‘fair compensation’ contained in Article 5(2)(a) and Article 5(2)(b) of Directive 2001/29 be interpreted differently depending on whether the reproduction on paper or a similar medium effected by the use of any kind of photographic technique or by some other process having similar effects is carried out by any user or by a natural person for private use and for ends that are neither directly nor indirectly commercial? If the answer is in the affirmative, on what criteria must that difference of interpretation be based?

2.    Must Article 5(2)(a) and Article 5(2)(b) of Directive 2001/29 be interpreted as authorising the Member States to fix the fair compensation payable to rightholders in the form of:

(i)    a lump-sum remunerative payment made by the manufacturer, importer or intra-Community acquirer of devices enabling protected works to be copied, at the time when such devices are put into circulation on national territory, the amount of which is calculated solely by reference to the speed at which the copier is capable of producing a number of copies per minute, without being otherwise linked to any harm suffered by rightholders;

and,

(ii)    a proportional remunerative payment, determined solely by means of a unit price multiplied by the number of copies produced, which varies depending on whether or not the person liable for payment has cooperated in the collection of that remuneration, which is payable by natural or legal persons making copies of works or, as the case may be, in lieu of those persons, by those who, for consideration or free of charge, make a reproduction device available to others.

3.    If the reply to this question is in the negative, what are the relevant and consistent criteria that the Member States must apply in order to ensure that, in accordance with European Union law, the compensation may be regarded as fair and that a fair balance is maintained between the persons concerned?

4.    Must Article 5(2)(a) and Article 5(2)(b) of Directive 2001/29 be interpreted as authorising the Member States to allocate half of the fair compensation due to rightholders to the publishers of works created by authors, the publishers being under no obligation whatsoever to ensure that the authors benefit, even indirectly, from some of the compensation of which they have been deprived?

5.    Must Article 5(2)(a) and Article 5(2)(b) of Directive 2001/29 be interpreted as authorising the Member States to introduce an undifferentiated system for recovering the fair compensation due to rightholders in the form of a lump-sum and an amount for each copy made, which, implicitly but indisputably, covers in part the copying of sheet music and counterfeit reproductions?

Exhausted and sad having spent 3 hours
looking for "publishers" in vain
in the InfoSoc Directive

As noted by the ECS in its document, this reference raises a number of issues, including whether a law (like the Belgian one) that allocates a portion of the fair compensation for reproductions pursuant to Article 5(2)(a) and (b) of the InfoSoc Directive directly to publishers is compatible with EU law.

Advocate General (AG) Cruz Villalon issued his Opinion [only available in a handful of EU languages] last June, holding the view - among other things and relying upon the earlier CJEU decision in Amazon - that such law would not be compliant with the InfoSoc Directive.

This would be because this piece of EU legislation does not allow Member States to allocate a portion of the fair compensation to the publishers if there is no obligation for the publishers to ensure that they pass on this part, directly or indirectly, to the authors.

The ECS agrees wth the conclusion of the AG on this very point, and more generally holds the view that:

"[C]opyright law should not grant rights ab initio to persons other than the individual creators. This principle (the “author principle”) applies to the exclusive rights within the copyright bundle. It also applies to any right to remuneration provided by law to compensate for the exempted uses of copyright-protected works. We believe copyright is not the correct instrument by which to confer rights on legal entities to protect their investments. There are many instances where publishers or producers deserve to get an adequate protection, but their protection should derive either from the contracts concluded with the individual creators or by way of a related right granted by law. The ECS believes the Court of Justice of the EU should clearly reaffirm the important principle of initial authorship for creators ... In the ECS’s opinion, the 2001/29 Infosoc Directive prohibits a system which automatically allocates a part of the fair remuneration for the reprographic or private copies of copyright works to persons other than the authors."

The ECS Opinion is available here. Let's now wait to see whether the CJEU agrees!