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Thursday, 5 January 2012

What is fair compensation? Amazon goes to the CJEU

A new case concerning copyright has made its way to the Court of Justice. This is Case C-521/11 Amazon.com International Sales and Others, a reference from the Oberster Gerichtshof (Supreme Court, Austria), concerning action for account and equitable remuneration for recording media - fair compensation for the purposes of Article 5(2)(b) of the InfoSoc Directive. As reported in the IPO's website, the case raises the following questions:

The judges of the CJEU clarifying what fairy compensation is
1. Can a legislative scheme be regarded as establishing 'fair compensation' for the purposes of Article 5(2)(b) of Directive 2001/29/EC, where:

a. the persons entitled under Article 2 of Directive 2001/29/EC have a right to equitable remuneration, exercisable only through a collecting society, against persons who, acting on a commercial basis and for remuneration, are first to place on the domestic market recording media capable of reproducing the works of rightholders,

b. this right applies irrespective of whether the media are marketed to intermediaries, to natural or legal persons for use other than for private purposes or to natural persons for use for private purposes, and

c. the person who uses the media for reproduction with the authorisation of the rightholder or who prior to its sale to the final consumer re-exports the media has an enforceable right against the collecting society to obtain reimbursement of the remunerations?

2. If Question1 is answered in the negative:

2.1. Does a scheme establish 'fair compensation' for the purposes of Article 5(2)(b) of Directive 2001/29/EC if the right specified in Question 1(a) applies only where recording media are marketed to natural persons who use the recording media to make reproductions for private purposes?

2.2. If question 2.1. is answered in the affirmative:
Where recording media are marketed to natural persons must it be assumed until the contrary is proven that they will use such media with a view to making reproductions for private purposes?

3. If Question 1 or 2.1. is answered in the affirmative:
Does it follow from Article 5 of Directive 2001/29/EC or other provisions of EU law that the right to be exercised by a collecting society to payment of fair compensation does not apply if, in relation to half of the funds received, the collecting society is required by law not to pay these to the persons entitled to compensation but to distribute them to social and cultural institutions?

4. If Question 1 or 2.1. is answered in the affirmative:
Does Article 5(2)(b) of Directive 2001/29/EC or other provision of EU law preclude the right to be exercised by a collecting society to payment of fair compensation if in another Member State - possibly on a basis in conformity with EU law - equitable remuneration for putting the media on the market has already been paid?

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