Levies for private copying when blank media are imported: who pays?

Author: Sophie C. van Loon (Attorney-at-law, Kennedy Van der Laan The Netherlands)

Stichting De Thuiskopie v Opus Supplies Deutschland GmbH, Mijndert van der Lee and Hananja van der Lee, Case C-462/09 Court of Justice of the European Union (Third Chamber), 16 June 2011

Journal of Intellectual Property Law & Practice (2011), doi: 10.1093/jiplp/jpr146, first published online: 18 October 2011

European Union Member States have a duty to guarantee that authors receive a fair compensation for private copying. The end user carrying out the copying is the person responsible for paying such fair compensation. However, if it is impossible to ensure recovery of the levy from the end user, national courts must interpret national law in order to allow recovery of that compensation from a debtor acting on a commercial basis.

Legal context

The Dutch Supreme Court referred a case concerning levies for private copying to the European Court of Justice for a preliminary ruling. The case concerned a manufacturer of blank media, Opus Supplies, which supplied customers in the Netherlands from Germany. Although the Dutch Copyright Act obliges the ‘importer’ of blank media to pay a private copying levy, neither the Dutch customers nor Opus Supplies paid such levy in relation to the blank media that the customers bought from Opus Supplies. Dutch courts had ruled that the individual customers might be regarded as ‘importer’. However, the Dutch Supreme Court hesitated as to whether such interpretation would be compliant with Directive 2001/29 (Copyright in the Information Society; ‘InfoSoc’). The reason for this was that, according to the Dutch Supreme Court, such interpretation of the national law would be tantamount to admitting that the levy cannot in fact be recovered, since individual purchasers in practice cannot easily be identified. As a result, the European Court of Justice had to decide on the interpretation of Articles 5(2)(b) and 5(5) of the Directive: the provision establishing the exception for private copying and the provision containing the three-step test.


Opus GmbH, a German entity managed by a Dutch couple, sold blank media such as CDs and DVDs through the internet. It had customers in various Member States, among which many were in the Netherlands. Before 2003, sales were handled by Dutch entity Opus BV, which paid levies for private copying to Stichting De Thuiskopie, the Dutch foundation responsible for the recovery of private copying levies imposed on blank media. As of 2003, all sales were executed from Germany through websites operated by Opus GmbH. However, customers could still use the website www.opus.nl and place their orders in the Dutch language.

Opus GmbH paid no copyright levies to De Thuiskopie or to its German equivalent. In Germany, no levies are due if the products are not brought into the German market. In the Netherlands, Article 16c of the Dutch Copyright Act states that the ‘importer’ of blank media is responsible for paying the ‘fair compensation’ for private copying that Member States are obliged to recover on the basis of the InfoSoc Directive. In this respect, it is relevant that, when placing an order online, Opus's customers had to accept its general terms and conditions, stating that:
Orders are placed by the customer directly with Opus Supplies Deutschland GmbH in Heinsberg, Germany. … Prices do not include Levy, Auvibel, Thuiskopie, GEMA or other charges. Goods are dispatched by order of the customer via TPG Post or DHL Express and always in the name of the customer. Accordingly, you may be regarded in your own country as the importer … .
The products were subsequently transported to the Netherlands at the customers' own expense and risk.

Opus GmbH clearly took the view that this arrangement would release it from the obligation to pay copyright levies in the Netherlands. Stichting De Thuiskopie, however, thought otherwise, and started summary proceedings in 2005 in order to recover the levies that it believed Opus should pay. According to De Thuiskopie, the sales performed by Opus constituted approximately one-third of the total sale of blank media in the Netherlands, so the amounts involved were considerable.


Both in first instance and appeal, the court ruled that Opus was not to be regarded ‘importer’ and therefore was under no obligation to pay levies. However, neither was the consumer: from the legislative history, it appeared that it was not the legislative intent to oblige consumers buying blank media abroad to pay levies. The courts were clearly unhappy with this result. However, this did not change their ruling. Probably the fact that it concerned summary proceedings played a role in this respect.

The Dutch Supreme Court was not pleased with the outcome either, and referred the following questions to the ECJ for a preliminary ruling:

  1. Does Directive 2001/29, in particular Article 5(2)(b) and (5) thereof, provide any assistance in determining who should be regarded under national law as owing the ‘fair compensation’ referred to in Article 5(2)(b)? If so, what assistance does it provide?
  2. In a case of distance selling in which the buyer is established in a different Member State to that of the seller, does Article 5(5) of Directive [2001/29] require national law to be interpreted so broadly that a person owing the ‘fair compensation’ referred to in Article 5(2)(b) of the directive who is acting on a commercial basis owes such compensation in at least one of the Member States involved in the distance selling?

In its answer to the first question, the ECJ established that the InfoSoc Directive does not indicate who should pay the fair compensation, so that Member States enjoy much freedom in this respect (paragraph 23). The ‘fair compensation’ in Article 5(2) of the directive must be regarded as compensation for the harm resulting for the author from the reproduction for private use of his protected work without his authorization. Therefore, the ECJ ruled, the person who performs such reproduction for its private use should be responsible for financing the fair compensation (paragraph 26). Here, the ECJ relied heavily on its recent Padawan judgment (Case C-467/08) where it decided accordingly, and acknowledged that ‘there may be practical difficulties in identifying private users and making them pay compensation to right holders. In those circumstances, it is open to Member States to institute a “private copying levy” payable by persons who have digital reproduction equipment, devices and media and who, on that basis, in law or in fact, make that equipment available to private users or who provide copying services for them’ (Padawan, paragraph 46).

Thus the ECJ's answer to the first question may be summarized as follows: although the consumer in principle is responsible for the payment of the fair compensation, as he is the one bringing the harm to the author involved, the Member States are free to determine that manufacturers of blank media should pay levies. Such manufacturers may then charge the consumer higher prices, so that in the end the consumer still pays for the harm that it has brought authors by making reproductions of their works without their permission.

However, the freedom that Member States enjoy with respect to the decision as to who should pay the levies for private copying is curtailed by the conclusion of the ECJ that the recovery of a fair compensation must be regarded as an obligation to guarantee a certain result (paragraph 34). In its answer to the second question, the ECJ ruled that Member States that have implemented a system whereby manufactures should pay the levy must safeguard actual payment of that levy. If it is impossible to collect that levy with the buyers of the blank media, national courts are obliged to interpret the national law in such a way that a compensation can be recovered from a debtor acting on a commercial basis.

Practical significance

The ECJ has decided that someone should pay one way or another. In this case, this probably means that the Dutch courts will have to consider Opus as the ‘importer’ even though both the factual and legal circumstances may point in a different direction. Shortly after the judgment, Opus has announced that it will no longer sell blank media to Dutch customers.

However, the further practical significance of this case may be limited. Not many consumers still frequently use CDs and DVDs; rather, they make reproductions on USB sticks, hard disks, or even in the cloud, for example by using NPVR (Network Personal Video Recorder) systems. In the Netherlands, manufacturers and providers of such services are not obliged to pay a private copying levy. Therefore, even though De Thuiskopie will probably be pleased with the outcome in this case, it may be facing far greater challenges in the future

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