ECJ: about the exception for private copying and the obligations for Member States

According to the Directive on copyright and related rights in the information society1, the exclusive right to reproduce audio, visual and audio-visual material is granted to authors, performers and producers. Nonetheless, exceptionally, Member States may authorise the making of private copies on condition that the copyright holders receive ‘fair compensation’. The purpose of that compensation is to contribute towards ensuring that rightholders receive appropriate remuneration for the use of their works or other subject-matter. Netherlands legislation provides for such an exception for copying for private use. It is for the manufacturer or importer of the reproduction media to pay the private copying levy. The Stichting de Thuiskopie is the Netherlands body responsible for recovering the private copying levy. Opus is a company based in Germany which sells, via the internet, blank media. Its operations are focused in particular on the Netherlands by means of Dutch-language websites which target Netherlands consumers. The contract of sale established by Opus provides that, where a Netherlands consumer makes an order online, that order is processed in Germany and the goods are delivered from Germany to the Netherlands, on behalf of and in the name of the customer. Opus does not pay a private copying levy in respect of the media delivered to its customers in the Netherlands, either in that Member State or in Germany. Here to read more.