National courts in copyright levy-charging countries must find a way to charge sellers based abroad, rules ECJ

The ECJ did not say how those countries should enforce the payment of the levy from companies based abroad.

Under EU copyright law countries can allow users to duplicate copyrighted material for private use as long as there is fair compensation for rights holders. This compensation is usually paid via a levy on the devices or media on which copying takes place. This is paid to a rights holders fund. Countries can avoid imposing the levy if they outlaw private copying altogether.

The Netherlands has a private copying right and a levy, while Germany does not. The ECJ heard a case in which a Dutch rights organisation sought payment of the levy in relation to blank CDs sold by German company Opus to Dutch individuals.

The Court recognised that it was not practical to seek the payment of the levy directly from individual buyers.

It ruled that it is the duty of the country which decides to have a copyright levy to make sure it is enforced.

"It is for the member state which has introduced a system of private copying levies chargeable to the manufacturer or importer of media for reproduction of protected works, and on the territory of which the harm caused to authors by the use for private purposes of their work by purchasers who reside there occurs, to ensure that [copyright] authors actually receive the fair compensation intended to compensate them for that harm," the ECJ ruling said.

"In that regard, the mere fact that the commercial seller of reproduction equipment, devices and media is established in a member state other than that in which the purchasers reside has no bearing on that obligation to achieve a certain result," the ECJ said.

Dutch courts had found that Opus, a German firm that sells blank media to Dutch customers via a Dutch language website, should not have to pay a private copying levy. The Dutch body responsible for the recovery of the private copying levy had appealed the decision and argued that Opus should be forced to pay the charge.

The ECJ agreed, but did not outline how the levy should be enforced. It merely said that national courts must find a way to fulfil their duty to rights holders.

"In the light of the fact that the system of recovery chosen by the Member State concerned cannot relieve that Member State of the obligation to achieve the certain result of ensuring that the authors who have suffered harm actually receive payment of fair compensation for the prejudice which arose on its territory, it is for the authorities, in particular the courts, of that Member State to seek an interpretation of national law which is consistent with that obligation to achieve a certain result and guarantees the recovery of that compensation from the seller who contributed to the importation of those media by making them available to the final users," said the ruling.

There is no private copying levy in the UK. However, a recent report commissioned by the Government recommended that the UK permit the public to reproduce copyrighted works for private use.

Countries should apply the levy to businesses because it is difficult to identify private copyright users and because those businesses can pass on the fees to consumers who may use the technology for private copying purposes, the ECJ said.

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