Where to request repayment of private copying levies when comparable levies have already been paid in another Member State?

A private copying levy is one charged on purchases of recordable media, at different rates and on different media and devices, depending on the country.

In a recent decision¹, the Court of Justice of the European Union (the CJEU) answered the following question put to it by the Austrian Supreme Court:

When a person has previously paid a levy in a Member State, is a private copying levy of a Member State which has territorial competence excluded by reason of the fact that a comparable levy has already been paid in another Member State, which does not have territorial competence?

The CJEU’s answer was: “no”. Since it is in principle for the final users who, for their private use, reproduce a protected work without right holder authorisation, thereby causing him harm, to make good that harm, it can be assumed that the harm arises in the territory of the Member State in which those final users reside. Thus, the CJEU concluded that a Member State which has introduced a private copying exemption into its national law, must ensure the effective recovery of the “fair compensation” in that Member State and the fact that a levy has already been paid in another Member State cannot exclude the payment in the other Member State of such compensation.

The CJEU as well as the Austrian Supreme Court² have left it open how a company may claim for recovery of compensations paid in Member States which have no territorial competence.

A few points are worth highlighting:

• The Austrian Supreme Court, in its request for a preliminary ruling, referred to the statements made by Advocate General Jääskinen in Stichting de Thuiskopie (C-462/09)³ where Advocate General Jääskinen pointed out that a company should not be obliged to pay fair compensation if it has already done so in another Member State:

  • “Thus, if a Member State where the company is established requires fair compensation to be paid and the company pays that compensation, then the rightholders’ rights under Directive 2001/29 are being sufficiently protected. This also applies if the seller has paid the compensation in its home State on a voluntary basis, thereby leaving it up to the receiving collecting organisation representing the rightholders in that State to distribute to organisations of the targeted countries. To provide otherwise would amount to the payment of double compensation, which would not be required to fulfil the aims of that directive.”

• However, Advocate General Mengozzi in his Opinion of 7 March 2013 in C-521/11 Amazon⁴ , while confirming that there is no reason to justify paying fair compensation twice, referred to the obligation to achieve a certain result in the Member State, in which the harm was sustained, namely to recover fair compensation for the harm suffered by the authors as a result of use of their work. Given this obligation on the Member State which has introduced an exemption for private copying to ensure the effective recovery of fair compensation, Advocate General Mengozzi concluded that the recovery of payments made in another state has to be done through the legal means available under its law⁵.

• The CJEU did not rule on the obligation of Member States, in which undue payment have been made to provide for an adequate opportunity to obtain reimbursement. In practice, it might be rather difficult for companies to effectively claim for recovery of fair compensation already paid in Member States which do not have territorial competence. National collecting societies, for example, might request specific confirmation by accountants. Matters are often complicated further by the fact that there is no sufficient copyright fee note on many receipts, which also causes evidential difficulties. For arguing the recovery of undue payments, it might be helpful to refer to the statement of Advocate General Mengozzi at point 90 and 91 of his Opinion:

  • However, it is for the Member State in which undue payment was made to give persons not required to pay fair compensation an adequate opportunity to obtain reimbursement of undue payments by way of fair compensation, where applicable through actions before national bodies. If double payment of fair compensation has actually been made in the present case, it would seem to me to be a reprehensible consequence of insufficient coordination between the laws of the Member States as a result of the absence of harmonisation of the rules on fair compensation. It will be for the Union legislature to intervene by enhancing the level of harmonisation of national law in order to prevent any such situations occurring again in future.

Read more on the judgments: CJEU Decision in case C 521-11; Austrian Supreme Court 4 Ob 142/13f, August 27, 2013

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