Judgment of 3 September 2014, C-201/13, Deckmyn

Mr Deckmyn is a member of the Vlaams Belang political party, while the object of the Vrijheidsfonds, according to its articles of association, is to support that political party financially and materially, to the exclusion of any profit motive. At the reception held on 9 January 2011 by the City of Ghent (Belgium) to celebrate the New Year, Mr Deckmyn handed out calendars for 2011 in which he is named as the editor. On the cover page of those calendars appeared the drawing at issue. The drawing at issue resembled that appearing on the cover of the Suske en Wiske comic book entitled ‘De Wilde Weldoener’ (which may roughly be translated as ‘The Compulsive Benefactor’), which was completed in 1961 by Mr Vandersteen. That drawing is a representation of one of the comic book’s main characters wearing a white tunic and throwing coins to people who are trying to pick them up. In the drawing at issue, that character was replaced by the Mayor of the City of Ghent and the people picking up the coins were replaced by people wearing veils and people of colour. Taking the view that the drawing at issue and its communication to the public constituted an infringement of their respective copyrights, Vandersteen and Others brought an action against Mr Deckmyn and the Vrijheidsfonds before the rechtbank van eerste aanleg te Brussel (Court of First Instance, Brussels), which ordered the defendants to cease all use of the drawing, failing which they would have to pay a periodic penalty. Before the referring court hearing the appeal against the decision at first instance, Mr Deckmyn and the Vrijheidsfonds submitted, in particular, that the drawing at issue is a political cartoon which falls within the scope of parody accepted under point (6) of Article 22(1) of the Law of 30 June 1994 on copyright and related rights. Vandersteen and Others dispute that interpretation, since, according to them, parody must meet certain criteria, which are not fulfilled in this case, namely to fulfil a critical purpose; itself show originality; display humorous traits; seek to ridicule the original work; and not borrow a greater number of formal elements from the original work than is strictly necessary in order to produce the parody. In those circumstances, they also allege that the drawing at issue conveyed a discriminatory message, since the characters who, in the original work, pick up the scattered coins, were replaced in the drawing at issue by people wearing veils and people of colour.

The hof van beroep te Brussel (Court of Appeal, Brussels) asked if the concept of “parody” is an autonomous concept of EU law and by its second and third questions, it is asking the Court how the exception for parody, provided for under Article 5(3)(k) of Directive 2001/29, should be understood. In particular, it is asking whether the concept of parody requires certain conditions to be fulfilled.

The Court concluded that article 5(3)(k) 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, must be interpreted as meaning that the concept of ‘parody’ appearing in that provision is an autonomous concept of EU law. Furthermore, according to the Court, article 5(3)(k) of Directive 2001/29 must be interpreted as meaning that the essential characteristics of parody, are, first, to evoke an existing work, while being noticeably different from it, and secondly, to constitute an expression of humour or mockery. The concept of ‘parody’, within the meaning of that provision, is not subject to the conditions that the parody should display an original character of its own, other than that of displaying noticeable differences with respect to the original parodied work; that it could reasonably be attributed to a person other than the author of the original work itself; that it should relate to the original work itself or mention the source of the parodied work. However, the application, in a particular case, of the exception for parody, within the meaning of Article 5(3)(k) of Directive 2001/29, must strike a fair balance between, on the one hand, the interests and rights of persons referred to in Articles 2 and 3 of that directive, and, on the other, the freedom of expression of the user of a protected work who is relying on the exception for parody, within the meaning of Article 5(3)(k). It is for the national court to determine, in the light of all the circumstances of the case in the main proceedings, whether the application of the exception for parody, within the meaning of Article 5(3)(k) of Directive 2001/29, on the assumption that the drawing at issue fulfils the essential requirements of parody, preserves that fair balance.

• Judgment of the Court of 1 December 2011, C-145/10, Eva-Maria Painer

Ms Painer has for many years worked as a freelance photographer, photographing, in particular, children in nurseries and day homes. In the course of that work, she took several photographs of Natascha K. designing the background, deciding the position and facial expression, and producing and developing them (‘the contested photographs’). Ms Painer has, for more than 17 years, labelled the photographs she produces with her name. Ms Painer sold the photographs which she produced, but without conferring on third parties any rights over them and without consenting to their publication. The price she charged for photographs corresponded solely to the price of the prints. After Natascha K., then aged 10, was abducted in 1998, the competent security authorities launched a search appeal in which the contested photographs were used. The defendants in the main proceedings are newspaper and magazine publishers. In 2006 Natascha K. managed to escape from her abductor. Following Natascha K.’s escape and prior to her first public appearance, the defendants in the main proceedings published the contested photographs in the newspapers, magazines and websites without, however, indicating the name of the photographer, or indicating a name other than Ms Painer’s as the photographer.The coverage in the various media and websites differed in its choice of the contested photographs and accompanying text. The defendants in the main proceedings claim that they received the contested photographs from a news agency without Ms Painer’s name being mentioned or with a name other than Ms Painer’s name being indicated as the photographer’s. Several of those publications also published a portrait, created by computer from the contested photographs, which, since there was no recent photograph of Natascha K. until her first public appearance, represented the supposed image of Natascha K. (‘the contested photo-fit’). By summons before the Handelsgericht Wien, on 10 April 2007, Ms Painer sought an order that the defendants in the main proceedings immediately cease the reproduction and/or distribution, without her consent and without indicating her as author, of the contested photographs and the contested photo-fit. Ms Painer also applied for an order against the defendants for accounts, payment of appropriate remuneration and damages for her loss. At the same time, Ms Painer applied for an interlocutory injunction, on which a ruling has already been given by the highest court, the Oberster Gerichtshof (Supreme Court) by a judgment of 26 August 2009. As is clear from the order for reference, the Oberster Gerichtshof held, applying the relevant national rules, that the defendants in the main proceedings did not need Ms Painer’s consent to publish the contested photo-fit. In that court’s view, the contested photograph which had been used as a template for the contested photo-fit was, admittedly, a photographic work protected by copyright. However, the production and publication of the contested photo-fit was not an adaptation for which the consent of Ms Painer, as author of the photographic work, was needed, but a free use, which did not require her consent. Indeed, the referring court considered that the question whether it was an adaptation or a free use depends on the creative effort in the template. The greater the creative effort in the template, the less conceivable is a free use. In the case of portrait photographs like the contested photographs, the creator enjoys only a small degree of individual formative freedom. For that reason, the copyright protection of that photograph is accordingly narrow. Furthermore, the contested photo-fit based on the template is a new and autonomous work which is protected by copyright.

The referring court (the Handelsgericht Wien) asks, in essence, whether Article 6(1) of Regulation No 44/2001 must be interpreted as precluding its application if actions against several defendants for substantially identical copyright infringements are brought on national legal grounds, which vary according to the Member States concerned. The next question has been raised by the referring court in order to determine the correctness of the position according to which the defendants in the main proceedings did not need Ms Painer’s consent to publish the contested photo-fit worked up from a portrait photograph, because the scope of the protection conferred on such a photograph was restricted, or even non-existent, because of the minor degree of formative freedom allowed by such photographs. Also, the national court asks, in essence, whether Article 5(3)(e) of Directive 2001/29, read in the light of Article 5(5) of that directive, must be interpreted as meaning that, in a case such as that in the main proceedings, its application requires a specific, current and express appeal for publication of the image on the part of the security authorities for search purposes and, if that is not required, whether the media can rely on that provision should they decide, of their own volition, without a search request being issued, to publish a photograph in the interests of public security. The referring court asks, in essence, whether Article 5(3)(d) of Directive 2001/29, read in the light of Article 5(5) of that directive, must be interpreted as not precluding its application where a press report quoting a work or other protected subject-matter is not a literary work protected by copyright. Furthermore, the referring court is asking, in essence, whether Article 5(3)(d) of Directive 2001/29, read in the light of Article 5(5) of that directive, must be interpreted as precluding its application where the name of the author or performer of the work or other protected subject-matter quoted is not indicated.

The Court concluded that Article 6(1) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as not precluding its application solely because actions against several defendants for substantially identical copyright infringements are brought on national legal grounds which vary according to the Member States concerned. It is for the referring court to assess, in the light of all the elements of the case, whether there is a risk of irreconcilable judgments if those actions were determined separately. Furthermore, Article 6 of Council Directive 93/98/EEC of 29 October 1993 harmonising the term of protection of copyright and certain related rights must be interpreted as meaning that a portrait photograph can, under that provision, be protected by copyright if, which it is for the national court to determine in each case, such photograph is an intellectual creation of the author reflecting his personality and expressing his free and creative choices in the production of that photograph. Since it has been determined that the portrait photograph in question is a work, its protection is not inferior to that enjoyed by any other work, including other photographic works. The Court ruled that Article 5(3)(e) 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, read in the light of Article 5(5) of that directive, must be interpreted as meaning that the media, such as newspaper publishers, may not use, of their own volition, a work protected by copyright by invoking an objective of public security. However, it is conceivable that a newspaper publisher might, in specific cases, contribute to the fulfilment of such an objective by publishing a photograph of a person for whom a search has been launched. It should be required that such initiative is taken, first, within the framework of a decision or action taken by the competent national authorities to ensure public security and, second, by agreement and in coordination with those authorities, in order to avoid the risk of interfering with the measures taken by them, without, however, a specific, current and express appeal, on the part of the security authorities, for publication of a photograph for the purposes of an investigation being necessary. The Court concluded that Article 5(3)(d) of Directive 2001/29, read in the light of Article 5(5) of that directive, must be interpreted as not precluding its application where a press report quoting a work or other protected subject-matter is not a literary work protected by copyright. Also, according to the Court, Article 5(3)(d) of Directive 2001/29, read in the light of Article 5(5) of that directive, must be interpreted as meaning that its application is subject to the obligation to indicate the source, including the name of the author or performer, of the work or other protected subject-matter quoted. However, if, in applying Article 5(3)(e) of Directive 2001/29, that name was not indicated, that obligation must be regarded as having been fulfilled if the source alone is indicated.

Judgment of 11 Sep 2014, C-117/13 (Ulmer)

Pursuant to the Copyright Directive1 , authors have the exclusive right to authorise or to prohibit the reproduction and the communication to the public of their works. However, the directive allows Member States to provide for specific exceptions or limitations to that right. This option exists notably for publically accessible libraries which, for the purpose of research or private study, make works from their collections available to users by dedicated terminals. In the present case, the Bundesgerichtshof (Federal Court of Justice of Germany) is asking the Court of Justice to clarify the scope of this option, of which Germany has made use.

The Bundesgerichtshof is required to rule on a dispute between the Technical University of Darmstadt (Technische Universität Darmstadt) and a German publishing house, Eugen Ulmer KG. The university library digitised a book published by Eugen Ulmer2 before making it available on its electronic reading posts. It refused the offer of the publishing house to purchase and use as electronic books (‘e-books’) the textbooks Eugen Ulmer publishes (the book in question among them). Eugen Ulmer is seeking to prevent the university from digitising the book in question and users of the library from being able, via the electronic reading points, to print out the book or store it on a USB stick and/or take those reproductions out of the library.

In its judgment delivered today, the Court holds, first of all, that, even if the rightholder offers to a library the possibility of concluding licencing agreements for the use of his works on appropriate terms, the library may avail itself of the exception provided for in favour of dedicated terminals; otherwise, the library could not realise its core mission or promote the public interest in promoting research and private study.

Next, the Court finds that the directive does not prevent Member States from granting libraries the right to digitise the books from their collections, if it becomes necessary, for the purpose of research or private study, to make those works available to individuals by dedicated terminals. The right of libraries to communicate, by dedicated terminals, the works they hold in their collections would risk being rendered largely meaningless, or indeed ineffective, if they did not have an ancillary right to digitise the works in question.

However, the Court holds that that right of communication which may be held by publicly accessible libraries cannot permit individuals to print out the works on paper or store them on a USB stick from dedicated terminals. The printing out of a work on paper and its storage on a USB sticks are acts of reproduction, in so far as they aim to create a new copy of the digital copy made available to individuals. Such acts of reproduction are not necessary for communicating the work to users by means of dedicated terminals and are therefore not covered by the right of communication by means of dedicated terminals, particularly since they are made by individuals and not by the library itself.

The Court nevertheless adds that Member States may, within the limits and conditions set by the directive, provide for an exception or limitation to the exclusive right of reproduction of rightholders and thus permit the users of a library to print the works out on paper or store them on a USB stick from dedicated terminals. For that, it is necessary in particular that fair compensation be paid to the rightholders.

Retrieved from:

• Judgment of the Court of 16 July 2009, C-5/08, Infopaq I

Infopaq operates a media monitoring and analysis business, which consists primarily in drawing up summaries of selected articles from Danish daily newspapers and other periodicals. The articles are selected on the basis of certain subject criteria agreed with customers and the selection is made by means of a ‘data capture process’. The summaries are sent to customers by email. DDF is a professional association of Danish daily newspaper publishers, whose function is inter alia to assist its members with copyright issues. In 2005 DDF became aware that Infopaq was scanning newspaper articles for commercial purposes without authorisation from the relevant rightholders. Taking the view that such consent was necessary for processing articles using the process in question, DDF complained to Infopaq about this procedure. The data capture process comprises the five phases which, according to DDF, lead to four acts of reproduction of newspaper articles. First, the relevant publications are registered manually by Infopaq employees in an electronic registration database. Secondly, once the spines are cut off the publications so that all the pages consist of loose sheets, the publications are scanned. The section to be scanned is selected from the registration database before the publication is put into the scanner. Scanning allows a TIFF (‘Tagged Image File Format’) file to be created for each page of the publication. When scanning is completed, the TIFF file is transferred to an OCR (‘Optical Character Recognition’) server. Thirdly, the OCR server translates the TIFF file into data that can be processed digitally. During that process, the image of each letter is translated into a character code which tells the computer what type of letter it is. For instance, the image of the letters ‘TDC’ is translated into something the computer can treat as the letters ‘TDC’ and put in a text format which can be recognised by the computer’s system. These data are saved as a text file which can be understood by any text processing program. The OCR process is completed by deleting the TIFF file. Fourthly, the text file is processed to find a search word defined beforehand. Each time a match for a search word is found, data is generated giving the publication, section and page number on which the match was found, together with a value expressed as a percentage between 0 and 100 indicating how far into the text it is to be found, in order to make it easier to read the article. Also in order to make it easier to find the search word when reading the article, the five words which come before and after the search word are captured (‘extract of 11 words’). At the end of the process the text file is deleted. Fifthly, at the end of the data capture process a cover sheet is printed out in respect of all the pages where the relevant search word was found. Infopaq disputed the claim that the procedure required consent from the rightholders and brought an action against DDF before the Østre Landsret (Eastern Regional Court), claiming that DDF should be ordered to acknowledge that Infopaq is entitled in Denmark to apply the abovementioned procedure without the consent of DDF or of its members. After the Østre Landsret dismissed that action, Infopaq brought an appeal before the Højesteret (the referring court).

The national court asks, essentially, whether the concept of ‘reproduction in part’ within the meaning of Directive 2001/29 is to be interpreted as meaning that it encompasses the storing and subsequent printing out on paper of a text extract consisting of 11 words. Also, the referring court asks, essentially, whether acts of reproduction occurring during a data capture process, such as that at issue in the main proceedings, satisfy the conditions laid down in Article 5(1) of Directive 2001/29 and, therefore, whether that process may be carried out without the consent of the relevant rightholders, since it is used to draw up summaries of newspaper articles and consists of scanning those articles in their entirety to produce a digital file, storing an extract of 11 words and then printing out that extract.

The Court concluded that an act occurring during a data capture process, which consists of storing an extract of a protected work comprising 11 words and printing out that extract, is such as to come within the concept of reproduction in part within the meaning of Article 2 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, if the elements thus reproduced are the expression of the intellectual creation of their author; it is for the national court to make this determination. The Court ruled that the act of printing out an extract of 11 words, during a data capture process such as that at issue in the main proceedings, does not fulfil the condition of being transient in nature as required by Article 5(1) of Directive 2001/29 and, therefore, that process cannot be carried out without the consent of the relevant rightholders.

• Order of the Court of 17 January 2012, C-302/10, Infopaq II

Infopaq operates a media monitoring and analysis business, which consists primarily in drawing up summaries of selected articles from Danish daily newspapers and other periodicals. The articles are selected on the basis of certain subject criteria agreed with customers and the selection is made by means of a ‘data capture process’. The summaries are sent to customers by email. DDF is a professional association of Danish daily newspaper publishers, whose function is inter alia to assist its members with copyright issues. In 2005 DDF became aware that Infopaq was scanning newspaper articles for commercial purposes without authorisation from the relevant rightholders. Taking the view that such consent was necessary for processing articles using the process in question, DDF complained to Infopaq about this procedure. The data capture process comprises the five phases which, according to DDF, lead to four acts of reproduction of newspaper articles. First, the relevant publications are registered manually by Infopaq employees in an electronic registration database. Secondly, once the spines are cut off the publications so that all the pages consist of loose sheets, the publications are scanned. The section to be scanned is selected from the registration database before the publication is put into the scanner. Scanning allows a TIFF (‘Tagged Image File Format’) file to be created for each page of the publication. When scanning is completed, the TIFF file is transferred to an OCR (‘Optical Character Recognition’) server. Thirdly, the OCR server translates the TIFF file into data that can be processed digitally. During that process, the image of each letter is translated into a character code which tells the computer what type of letter it is. For instance, the image of the letters ‘TDC’ is translated into something the computer can treat as the letters ‘TDC’ and put in a text format which can be recognised by the computer’s system. These data are saved as a text file which can be understood by any text processing program. The OCR process is completed by deleting the TIFF file. Fourthly, the text file is processed to find a search word defined beforehand. Each time a match for a search word is found, data is generated giving the publication, section and page number on which the match was found, together with a value expressed as a percentage between 0 and 100 indicating how far into the text it is to be found, in order to make it easier to read the article. Also in order to make it easier to find the search word when reading the article, the five words which come before and after the search word are captured (‘extract of 11 words’). At the end of the process the text file is deleted. Fifthly, at the end of the data capture process a cover sheet is printed out in respect of all the pages where the relevant search word was found. Infopaq disputed the claim that the procedure required consent from the rightholders and brought an action against DDF before the Østre Landsret (Eastern Regional Court), claiming that DDF should be ordered to acknowledge that Infopaq is entitled in Denmark to apply the abovementioned procedure without the consent of DDF or of its members. After the Østre Landsret dismissed that action, Infopaq brought an appeal before the Højesteret (the referring court).

The referring court asks, in essence, whether Article 5(1) of Directive 2001/29 must be interpreted as meaning that the acts of reproduction carried out during a data capture process, such as those in issue in the main proceedings, fulfil the condition that those acts must constitute an integral and essential part of a technological process. In that regard, the referring court asks in particular whether the stage of the technological process at which those acts took place and the fact that that technological process involves human intervention should be taken into account. Furthermore, the referring court asks, in essence, whether Article 5(1) of Directive 2001/29 must be interpreted as meaning that the acts of temporary reproduction carried out during a data capture process, such as those in issue in the main proceedings, fulfil the condition that the acts of reproduction must pursue a sole purpose, namely to enable either the transmission of a protected work or a protected subject-matter in a network between third parties by an intermediary, or the lawful use of such a work or such a subject-matter. Also, it asks whether the temporary acts of reproduction carried out during a data capture process, such as those in issue in the main proceedings, fulfil the condition laid down in Article 5(1) of Directive 2001/29 that those acts must not have independent economic significance. Finally, the referring court asks, in essence, whether Article 5(5) of Directive 2001/29 must be interpreted as meaning that the acts of temporary reproduction carried out during a data capture process, such as those in issue in the main proceedings, fulfil the condition that those acts must neither conflict with the normal exploitation of the work nor unreasonably prejudice the legitimate interests of the rightholder.

The Court concluded that Article 5(1) 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 must be interpreted as meaning that the acts of temporary reproduction carried out during a ‘data capture’ process, such as those in issue in the main proceedings, fulfil the condition that those acts must constitute an integral and essential part of a technological process, notwithstanding the fact that they initiate and terminate that process and involve human intervention, fulfil the condition that those acts of reproduction must pursue a sole purpose, namely to enable the lawful use of a protected work or a protected subject-matter, fulfil the condition that those acts must not have an independent economic significance provided, first, that the implementation of those acts does not enable the generation of an additional profit going beyond that derived from the lawful use of the protected work and, secondly, that the acts of temporary reproduction do not lead to a modification of that work. According to the Court, Article 5(5) of Directive 2001/29 must be interpreted as meaning that, if they fulfil all the conditions laid down in Article 5(1) of that directive, the acts of temporary reproduction carried out during a ‘data capture’ process, such as those in issue in the main proceedings, must be regarded as fulfilling the condition that the acts of reproduction may not conflict with a normal exploitation of the work or unreasonably prejudice the legitimate interests of the rightholder.

• Judgment of the Court of 5 June 2014, C-360/13, Newspaper Licensing Agency

The PRCA is an association of public relations professionals. Those professionals use the media monitoring service offered by the Meltwater group of companies (‘Meltwater’), which makes available to them, online, monitoring reports on press articles published on the internet, those reports being compiled on the basis of key words provided by the customers. The NLA is a body set up by the publishers of newspapers in the United Kingdom for the purpose of providing collective licensing of newspaper cfontent. The NLA took the view that Meltwater and its customers were required to obtain authorisation from the copyright holders for, respectively, providing and receiving the media monitoring service. Meltwater agreed to enter into a web database licence. The PRCA, however, maintained that the online receipt of the monitoring reports by Meltwater’s customers not require a licence. Seised of the dispute, the High Court of Justice (England & Wales), Chancery Division, and the Court of Appeal (England & Wales) held that the members of the PRCA were required to obtain a licence or consent from the NLA in order to receive Meltwater’s service. The PRCA brought an appeal against that decision before the Supreme Court of the United Kingdom.

The Supreme Court of the United Kingdom asks, in essence, whether Article 5 of Directive 2001/29 must be interpreted as meaning that the on-screen copies and the cached copies made by an end-user in the course of viewing a website satisfy the conditions that those copies must be temporary, that they must be transient or incidental in nature and that they must constitute an integral and essential part of a technological process, and, if so, whether those copies may be made without the authorisation of the copyright holders.

The Court concluded that Article 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 must be interpreted as meaning that the copies on the user’s computer screen and the copies in the internet ‘cache’ of that computer’s hard disk, made by an end-user in the course of viewing a website, satisfy the conditions that those copies must be temporary, that they must be transient or incidental in nature and that they must constitute an integral and essential part of a technological process, as well as the conditions laid down in Article 5(5) of that directive, and that they may therefore be made without the authorisation of the copyright holders.

• Judgment of the Court of 10 April 2014, C-435/12, ACI Adam BV e. a./ Stichting Onderhandelingen Thuiskopie vergoeding

ACI Adam and Others are importers and/or mafnufacturers 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.

The referring court asks, in essence, whether EU law, in particular Article 5(2)(b) of Directive 2001/29, read in conjunction with paragraph 5 of that article, is to be interpreted as precluding national legislation, such as that at issue in the main proceedings, which does not distinguish the situation in which the source from which a reproduction for private use is made is lawful from that in which that source is unlawful.

The referring court asks, in essence, whether Directive 2004/48 is to be interpreted as meaning that it may apply to proceedings, such as those in the main proceedings, in which those liable for payment of the fair compensation bring an action before that court for a ruling against the body responsible for collecting that remuneration and distributing it to copyright holders, which defends that action.

The Court concluded that EU law, in particular Article 5(2)(b) 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, read in conjunction with paragraph 5 of that article, must be interpreted as precluding national legislation, such as that at issue in the main proceedings, which does not distinguish the situation in which the source from which a reproduction for private use is made is lawful from that in which that source is unlawful.

Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights must be interpreted as not applying to proceedings, such as those in the main proceedings, in which those liable for payment of the fair compensation bring an action before the referring court for a ruling against the body responsible for collecting that remuneration and distributing it to copyright holders, which defends that action.

• Judgment of the Court of 16 November 2016, C-301/15, Marc Soulier Sara Doke c / premier ministre, ministre de la culture et de la communication

By application registered on 2 May 2013, Mr Soulier and Ms Doke, who are both authors of literary works, requested the Conseil d’État (Council of State, France) to annul Decree No 2013-182 implementing  articles L. 134‑1 to L. 134-9 of the Intellectual Property Code because it establishes an exception or a limitation to the exclusive reproduction right laid down in Article 2(a) of Directive 2001/29 and  that exception or limitation is not included among those listed exhaustively in Article 5 thereof.

The Syndicat des écrivains de langue française (SELF), the Autour des auteurs association and 35 natural persons subsequently intervened in the proceedings in support of the claim brought by Mr Soulier and Ms Doke.

SOFIA subsequently intervened in the proceedings, also seeking to have those claims dismissed. SOFIA presents itself as a society made up equally of authors and publishers, mandated to manage the right to authorise the reproduction and representation of out-of-print books in digital form, the public lending right and the remuneration for digital private copying in the field of writing.

After dismissing all the pleas of Mr Soulier and Ms Doke that rested on legal bases other than Articles 2 and 5 of Directive 2001/29, the referring court started the examination of the pleas relating to those articles by holding, immediately, that the treatment of that aspect of the case depends on the interpretation to be given of those articles.

The referring Court asks, in essence if [Articles 2 and 5] of Directive 2001/29 preclude legislation, such as that [established in Articles L. 134-1 to L. 134-9 of the Intellectual Property Code], that gives approved collecting societies the right to authorise the reproduction and the representation in digital form of “out-of-print books”, while allowing the authors of those books, or their successors in title, to oppose or put an end to that practice, on the conditions that it lays down.

The Court ruled that Article 2(a) and Article 3(1) 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 must be interpreted as precluding national legislation, such as that at issue in the main proceedings, that gives an approved collecting society the right to authorise the reproduction and communication to the public in digital form of ‘out-of-print’ books, namely, books published in France before 1 January 2001 which are no longer commercially distributed by a publisher and are not currently published in print or in digital form, while allowing the authors of those books, or their successors in title, to oppose or put an end to that practice, on the conditions that that legislation lays down.