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10 April 2014 (*)
(Reference for a preliminary ruling — Intellectual property — Copyright and related rights — Harmonisation of
certain aspects of copyright and related rights in the information society — Directive 2001/29/EC — Article 5(2)(b)
and (5) — Reproduction right — Exceptions and limitations — Reproduction for private use — Lawful nature of the
origin of the copy — Directive 2004/48/EC– Scope)
In Case C‑435/12,
REQUEST for a preliminary ruling under Article 267 TFEU from the Hoge Raad der Nederlanden (Netherlands),
made by decision of 21 September 2012, received at the Court on 26 September 2012, in the proceedings
ACI Adam BV and Others
Stichting de Thuiskopie,
Stichting Onderhandelingen Thuiskopie vergoeding,
THE COURT (Fourth Chamber),
composed of L. Bay Larsen, President of the Chamber, K. Lenaerts, Vice-President of the Court, acting as Judge of
the Fourth Chamber, M. Safjan, J. Malenovský (Rapporteur) and A. Prechal, Judges,
Advocate General: P. Cruz Villalón,
Registrar: M. Ferreira, Principal Administrator,
having regard to the written procedure and further to the hearing on 9 October 2013,
after considering the observations submitted on behalf of:
ACI Adam BV and Others, by D. Visser, advocaat,
Stichting de Thuiskopie and Stichting Onderhandelingen Thuiskopie vergoeding, by T. Cohen Jehoram and
V. Rörsch, advocaten,
the Netherlands Government, by C. Schillemans and M. Noort, acting as Agents,
the Spanish Government, by M. García-Valdecasas Dorrego, acting as Agent,
the Italian Government, by G. Palmieri, acting as Agent, assisted by P. Gentili, avvocato dello Stato,
the Lithuanian Government, by D. Kriaučiūnas and J. Nasutavičienė, acting as Agents,
the Austrian Government, by A. Posch, acting as Agent,
the European Commission, by J. Samnadda and F. Wilman, acting as Agents,
after hearing the Opinion of the Advocate General at the sitting on 9 January 2014,
gives the following
This request for a preliminary ruling concerns the interpretation of Article 5(2)(b) and (5) 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), and of Directive 2004/48/EC of the European
Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights (OJ 2004 L 157,
p. 45 and corrigenda in OJ 2004 L 195, p. 16 and OJ 2007 L 204, p. 27).
The request has been made in proceedings between, on the one hand, ACI Adam BV and a certain number of
other undertakings (‘ACI Adam and Others’) and, on the other, Stichting de Thuiskopie (‘Thuiskopie’) and Stichting
Onderhandelingen Thuiskopie vergoeding (‘SONT’) — two foundations responsible for, first, collecting and
distributing the levy imposed on manufacturers and importers of media designed for the reproduction of literary,
scientific or artistic works with a view to private use (‘the private copying levy’), and, secondly, determining the
amount of that levy — regarding the fact that SONT, in determining the amount of that levy, takes into account the
harm resulting from copies made from an unlawful source.
Legal context
EU law
Directive 2001/29
Recitals 22, 31, 32, 35, 38 and 44 in the preamble to Directive 2001/29 state the following:
The objective of proper support for the dissemination of culture must not be achieved by sacrificing strict protection
of rights or by tolerating illegal forms of distribution of counterfeited or pirated works.
A fair balance of rights and interests between the different categories of rightholders, as well as between the
different categories of rightholders and users of protected subject-matter must be safeguarded. …
This Directive provides for an exhaustive enumeration of exceptions and limitations to the reproduction right and
the right of communication to the public. Some exceptions or limitations only apply to the reproduction right, where
appropriate. This list takes due account of the different legal traditions in Member States, while, at the same time,


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