CURIA - Documents

‘This Directive concerns the measures, procedures and remedies necessary to ensure the enforcement of
intellectual property rights. For the purposes of this Directive, the term “intellectual property rights” includes
industrial property rights.’
Article 2 of Directive 2004/48, which relates to the scope of that directive, provides in paragraph 1:
‘Without prejudice to the means which are or may be provided for in Community or national legislation, in so far as
those means may be more favourable for rightholders, the measures, procedures and remedies provided for by this
Directive shall apply, in accordance with Article 3, to any infringement of intellectual property rights as provided for
by Community law and/or by the national law of the Member State concerned.’
Netherlands law
Article 1 of the Law on copyright (Auteurswet, Stb. 2008, No 538) (‘the AW’) confers on the creator of a literary,
scientific or artistic work, or his legal successors, inter alia the exclusive right to reproduce that work subject to the
limitations provided for by law.
Article 16c(1) and (2) of the AW establishes the principle of the private copying levy. That provision is worded as
The reproduction of a work or a part thereof on an item designed for the performance, representation or
reproduction of a work shall not be regarded as an infringement of the copyright in that work if the reproduction is
made for ends that are neither directly nor indirectly commercial and serves exclusively for the own practice, study
or use of the natural person making the reproduction.
Payment of a fair remuneration in respect of the reproduction referred to in paragraph 1 shall be due to the
creator of the work or his legal successors. The manufacturer or importer of the items referred to in paragraph 1
shall be liable for payment of the remuneration.’
Article 1019h of the Code of Civil Procedure (Wetboek van Burgerlijke Rechtsvordering), which constitutes the
transposition of Article 14 of Directive 2004/48, is worded as follows:
‘In so far as is necessary, by way of derogation from Book I, Title II, Section 12, Paragraph 2 and Article 843a(1),
the unsuccessful party shall be ordered to pay the reasonable and proportionate legal costs and other expenses
incurred by the successful party, unless equity does not allow this.’
The dispute in the main proceedings and the questions referred for a preliminary ruling
ACI Adam and Others are importers and/or manufacturers of blank data media such as CDs and CD-Rs.
Under Article 16c of the AW, ACI Adam and Others are required to pay the private copying levy, the amount of
which is determined by SONT, to Thuiskopie.
ACI Adam and Others submit that that amount incorrectly takes into account the harm suffered, as the case may
be, by copyright holders as a result of copies made from unlawful sources.
Consequently, ACI Adam and Others brought proceedings against Thuiskopie and SONT before the Rechtbank te
’s-Gravenhage (District Court, The Hague) claiming, in essence, that the private copying levy provided for in
Article 16c(2) of the AW is intended exclusively to remunerate copyright holders for acts of reproduction falling
within the scope of paragraph 1 of that article, with the result that the amount of that fee should not take into
account compensation for harm suffered as a result of copies of works made from unlawful sources.
The Rechtbank te ’s-Gravenhage dismissed the application of ACI Adam and Others by judgment of 25 June 2008.
ACI Adam and Others appealed against that judgment before the Gerechtshof te ’s-Gravenhage (Regional Court of
Appeal, The Hague). By judgment of 15 November 2010, that court upheld the judgment delivered by the
Rechtbank te ’s-Gravenhage.
The referring court, before which ACI Adam and Others appealed in cassation against the judgment of the
Gerechtshof te ’s-Gravenhage, takes the view that Directive 2001/29 does not specify whether reproductions made
from an unlawful source must be taken into account in determining the fair compensation referred to in Article 5(2)
(b) of that directive.
In those circumstances, the Hoge Raad der Nederlanden (Supreme Court of the Netherlands) decided to stay the
proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
Should Article 5(2)(b) — whether or not in conjunction with Article 5(5) — of Directive [2001/29] be interpreted
as meaning that the limitation on copyright referred to therein applies to reproductions which satisfy the
requirements set out in that provision, regardless of whether the copies of the works from which the reproductions
were taken became available to the natural person concerned lawfully — that is to say: without infringing the
copyright of the rightholders — or does that limitation apply only to reproductions taken from works which have
become available to the person concerned without infringement of copyright?
If the answer to question 1 is that expressed at the end of the question, can the application of the “three-stage
test” referred to in Article 5(5) of Directive [2001/29] form the basis for the expansion of the scope of the
exception of Article 5(2), or can its application only lead to the reduction of the scope of the limitation?
If the answer to question 1 is that expressed at the end of the question, is a rule of national law which provides
that in the case of reproductions made by a natural person for private use and without any direct or indirect
commercial objective, fair compensation is payable, regardless of whether the making of those reproductions is
authorised under Article 5(2) of Directive [2001/29] — and without there being any infringement by that rule of the
prohibition right of the rightholder and his entitlement to damages — contrary to Article 5 of [that] Directive, or to
any other rule of EU law?
In the light of the “three-stage test” of Article 5(5) of Directive [2001/29], is it important when answering that
question that technological measures to combat the making of unauthorised private copies are not (yet) available?
Is Directive [2004/48] applicable to proceedings such as these where — after a Member State, on the basis of
Article 5(2)(b) of Directive [2001/29], has imposed the obligation to pay the fair compensation referred to in that
provision on producers and importers of media which are suitable and intended for the reproduction of works, and
has determined that that fair compensation should be paid to an organisation designated by that Member State
which has been charged with collecting and distributing the fair compensation — those liable to pay the


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