Advocate General Huydecoper of the Dutch Supreme Court proposes to submit prejudicial questions to the European Court of Justice about private copying levies. If the Supreme Court agrees with this, the ECJ will decide if the private copying exception is in compliance with the Berne three-step test, which is also laid down in the European Copyright Directive (2001/29/EG).

The European Copyright Directive provides a limited list of allowed limitations and exceptions for the use of copyrighted works without consent of the copyright holder. Member states can choose which limitations and exceptions they want to implement in their national laws. The three-step test sets boundaries to those limitations and exceptions. Limitations and exceptions are only allowed in (1) certain special cases (2) that do not conflict with the normal exploitation of the work and (3) do not unreasonably prejudice the legitimate interests of the right holder.  

In the underlying case, the question arises whether only copies from works obtained from 'authorized' sources should be taken into account in the calculation of the private copying levy, or also copies from works obtained from 'illegal' sources. If works from illegal sources should be taken into account, the private copying levy will be higher. The Advocate General states that in order to answer these questions, it is necessary to submit a few prejudicial questions to the ECJ.

The Advocate General asks what is meant with 'certain special cases' in the three-step test and wonders if the exemption of private copying is compliant with the rule that exceptions do not unreasonably prejudice the legitimate interests of the right holder. The questions the Advocate General proposes to submit to the ECJ - in short - are the following:

A) Is article 16c (1) of the Dutch Copyright Act, in which the private copying exemption is laid down, in compliance with the European Copyright Directive?

B) If not: is there another rule of national law regarding compensation for reproductions that violates any rule of European law?

C) Does it make any difference for the answers to questions A and B that the Dutch private copying rules only provide in a levy on 'blank' carriers, like CDs and DVDs, but not on other means for reproduction, like MP3 players and hard disks? In practice, a large part of the private copies are made with this kind of devices, while no levy is being paid for those copies.

D) Are the answers to the previous questions the same for reproductions on which neighboring rights apply? If not, in which aspect do the answers to the questions differ?

E) If the answer to question A is no: is the Dutch judge obliged to explain article 16c of the Copyright Code in accordance with the European Copyright Directive?

If the Dutch Supreme Court decides to follow the Advocate General's opinion and submits the prejudicial questions to the ECJ, this could mean that there will finally be more clarity on how private copying levies relate to the three-step test and on how the three-step test should be interpreted.

Read more about private copying levies on FutureOfCopyright.com:

• ECJ confirms legality of private copying levies but sets strict condition of application to devices
• Court orders Dutch government to properly enforce private copying levy

Source: Conclusion of Advocate General Huydecoper 

By: Marjolein van der Heide