[Editor's note] Like most countries and regions in the world, The rulings of the Court of Justice of the European Union have important guiding significance and predictive value for understanding the legal norms of the European Union. Esabaril (ELZABURU) At the beginning of each year, typical cases of the Court of Justice of the European Union in the previous year are summarized and published, And a brief review of each case, In order to help customers and partners to understand the EU intellectual property norms. Given the importance of Chinese customers and partners, We try to publish the Chinese version of typical cases on a weekly basis, It is convenient for Chinese partners to learn the latest information in a timely manner. 　　

[background] 　　Copydan Is the Danish agency responsible for collecting compensation for works protected by copyright in private reproduction. The group sued Nokia (Nokia) , It asked the latter to pay compensation tax for private copying of copyright on its mobile phone memory cards sold in Denmark. 　　In the course of this case, Denmark accepted the court's request to the European Court of Justice (Court of Justice) Clarify a series of issues related to the provisions of private reproduction of copyrighted works. 　　

[conclusion] 　　First of all, A multifunctional device whose primary function is not to reproduce a copyrighted work for private use, Whether the collection of private copy tax conforms to the provisions of EU law? The European Court of Justice stated that, Given that the end user would theoretically use all the features of a device, Therefore "The device is single-function or multifunction, Or whether its replication function is an auxiliary function of other functions" And so on, Shall not affect the decision to impose compensation on them. but, It shall be taken into account in calculating the amount of compensation receivable "In the process of reproducing a copyright work for private use, The size of the role played by the equipment" .

　　secondly, Only external cards will be added (external cards) As the object of the above taxes and fees, exempt MP3 Player internal memory card tax liability, Whether this rule is legal? To answer this question, European court of justice "Charter of Fundamental Rights of the European Union" The first 20 The principle of equal treatment stipulated in the article, According to European Union law, The same circumstances should not be treated differently. however, The European Court of Justice also noted, It should be up to the courts of the member States on the basis of the facts of the case, Determine whether the disputed storage devices are in the same situation, Or something different needs to be done.

　　again, The European Court of Justice has reviewed Danish legal provisions for commercial customers (business consumers) The legality of restitution of private reproduction compensation, And specify in the ruling the guiding principles that Danish courts should follow in resolving the dispute.

　　The European Court of Justice said in its ruling, When there are practical difficulties in collecting compensation from end users, This fee may be charged to commercial users who purchase and resell copying equipment, As long as it can prove the purchase of the above commercial users (Not only Copydan Approved ones) The consumers of the devices sold are still business users (Non-individual consumer) , And the primary purpose of the device memory card has nothing to do with private copying, The corresponding tax collected shall be refunded to the commercial user selling the equipment.

　　again, How to understand "Directive of the European Parliament and of the Council on the harmonization of partial provisions on copyright and related rights in the information society (The first 2001/29/EC No) " (Hereinafter referred to as "European Union regulation 2001/29/EC Number instruction" ) The first 5 And the preamble 35 Paragraph about "The loss to the right holder is small, Compensation may not be required" Stipulation of? The European Court of Justice explained, It shall be left to the discretion of the Member States to determine when the loss to the obligee falls below a certain standard, Compensation may not be required. but, Member states exercising the above discretion should follow the principle of equal treatment.

　　again, The right holder permits the user to reproduce for private use, Whether it affects compensation? The European Court of Justice held that, If a member state law precludes the right holder to authorize others to make private copies, Then the act shall not affect the fair compensation payable.

　　On the effect of technical means on fair compensation for private reproduction, The European Court of Justice held that, The right holder may decide on his own whether to use technical means, as VG Wort case (Case number: C-457/11) adjudication, The use of technical means cannot be a precondition for equitable compensation. but, In determining the exact amount of compensation, Member states may consider whether technical measures have been adopted, In order to "encourage" Copyright owner "Adopting technical means to promote the proper application of the private copying exception" .

　　The question of whether the private copy exception applies to the use of illegal devices for copying, European court of justice ACI Adam case (Case number: C-435/12) The conclusion of the ruling. "European Union regulation 2001/29/EC Number instruction" Member States are required to legislate a distinction between the legality of devices reproduced for private use, The reason is that "If you don't differentiate, It means buying equipment that is subject to the tax, All users of the facility or machine are indirectly penalized" , Those who are not copying with illegal devices "It is equivalent to the private copying exception for the purpose of applying the EU directive, And the extra cost is not small" .

　　Finally, The question of whether the private copy exception can be applied when the actor uses the third party device to copy the work, The European Court of Justice stated that, The private copying exception is not required under the applicable conditions "Duplicating agent" Has a legal connection to the device used in the act of copying, So it should be understood as, The legislator holds that the relationship between the actor and the device used in the act does not affect the enforcement of the provision. Therefore, European court of justice ruling, Eu law does not prohibit it "Legal provisions of member states, A natural person who copies a protected work using or with the aid of a third party's equipment shall pay fair compensation" . 　　

[comment] 　　The European Court of Justice took the opportunity to rule on the case, Summarize previous interpretations of the private copying regulations and clarify the guidelines for applying the regulations, So that the courts of the Member States can properly apply the relevant EU law when trying similar disputes. In addition, A new principle introduced for the first time in this ruling is, A natural person who is not required to make a copy for private use can only use his own equipment to reproduce the work.

　　compile: Liu Dan, Esabarry Legal Counsel　　source: Esabaril (ELZABURU) Intellectual property rights