Under copyright law, reproductions of a work for personal use are permissible within certain limits. To compensate for the fact that the manufacturers and importers of reproduction devices create the possibility for users to appropriate other authors' works through reproduction, they must pay the authors a so-called device levy. The version of Section 54a (1) of the Copyright Act (UrhG a.F.) applicable until 31 December 2007 provided for such a remuneration obligation of the manufacturers and importers if it was to be expected, according to the nature of the work, that it would be reproduced by copying a work or by a process of comparable effect.
The complainant and plaintiff in the main proceedings, as a collecting society, administers the copyrights of word authors. The defendant in the main proceedings imports and sells, among other things, printers and plotters. The parties disputed whether printers and plotters are among the reproduction devices subject to remuneration under Section 54a (1) UrhG, old version. The complainant claimed information from the defendant about, among other things, the type and number of printers and plotters it put on the market and their performance, and also sought a declaratory judgment that the defendant was obligated to pay remuneration in accordance with the tariff. While the Regional Court and the Higher Regional Court essentially upheld the claim, the Federal Court of Justice denied the claims asserted, in particular on the grounds that under the law applicable at the time, only the reproduction of printed works (analog originals) was subject to the obligation to pay remuneration, but not the reproduction of digital originals. Therefore, printers and plotters, even in combination with other devices (such as PCs and scanners), were not
subject to remuneration.
The complainant considers that this decision violates the right of authors of digital print originals represented by her to exploit their intellectual property rights guaranteed under Article 14.1 of the Basic Law. In addition, she complains of a violation of her right to the lawful judge, because the Federal Court of Justice should have submitted the question to the Court of Justice of the European Union beforehand as to whether its interpretation of national copyright law was contrary to the mandatory requirements of Article 5.2 lit. a of the Copyright Directive 2001/29/EC. According to this provision, Member States may regulate restrictions on the authors' right to reproduce a work, inter alia, with respect to reproductions by means of "any photomechanical process" or "any other process having similar effect", but on condition that the rightholder receives "fair compensation".
The 2nd Chamber of the First Senate of the Federal Constitutional Court overturned the judgement of the Federal Supreme Court and referred the case back to it.
The decision is essentially based on the following considerations:
(1) The challenged judgment infringes the guarantee of the statutory judge under Article 101.1 sentence 2 of the Basic Law because it fails to address the obligation to make a reference to the Court of Justice of the European Union ("Court of Justice") under Article 267.3 TFEU.
According to the case-law of the Court of Justice, a national court of last instance must comply with its obligation to make a reference if a question of Community law arises in proceedings pending before it, unless the court has established that the question raised is not relevant to the decision, that it has already been the subject of an interpretation by the Court of Justice or that the correct application of Community law is so obvious that there is no room for reasonable doubt. However, the Federal Constitutional Court only reviews whether the interpretation and application of the rule on jurisdiction in Article 267 (3) TFEU is manifestly untenable. In this context, it is not primarily the defensibility of the interpretation by the non-constitutional courts of the substantive Union law relevant to the dispute that is relevant, but rather the
the reasonableness of the handling of the obligation to refer under Article 267 (3) TFEU.
The challenged decision violates the guarantee of the statutory judge because it already does not show whether the Federal Court of Justice has even dealt with European law and a referral to the Court of Justice. In this context, the existence of a duty to refer is obvious, since justifiable other views to the one held by the Federal Court of Justice on the basis of the Copyright Directive do not appear to be excluded at all. It is questionable whether, under Union law, authors of digital originals may be excluded from the benefit of a device levy system. This is because the Copyright Directive does not explicitly distinguish between analogue and digital originals. The wording of Article 5(2) of the Directive and the recitals do not preclude the Directive from focusing solely on the result of the reproduction process and not on the nature of the original. There is no established case-law of the Court of Justice on the interpretation of the provision of the Copyright Directive in question, nor is the correct application of Union law obvious. Rather, the legal question is already highly controversial with regard to German law, which is formulated in a similar way. In addition, the member states have different regulations as to whether and which devices or media are charged and what "fair compensation" the right holders receive; with regard to the Spanish regulation, a preliminary ruling is already pending before the Court of Justice.
The Federal Court of Justice will also have to examine whether the guarantee of property under Article 14.1 of the Basic Law does not already require an interpretation of Section 54a UrhG old, according to which the complainant's claim is to be granted. For in this case, a referral to the Court of Justice could be superfluous due to the lack of relevance of the referral question.
The constituent features of copyright as property in the sense of the Constitution include the fundamental allocation of the pecuniary result of the creative work to the author by way of private-law standardisation as well as his or her freedom to dispose of it on his or her own responsibility.
The Federal Court of Justice's reasoning, according to which authors of digital originals are exempt from any remuneration, does not consider milder means, i.e. here a limitation of the amount of remuneration. Moreover, the interpretation and application of copyright law must guarantee the property rights of authors despite the numerous technical innovations in this field. In view of the rapid spread of digital data storage and reproduction, a restrictive interpretation of Section 54a UrhG old could lead to an absolute gap in protection to the detriment of certain authors. Finally, the Federal Court of Justice's assumption that in the case of digital originals - unlike in the case of printed originals - there is often consent by the rightholder to the reproduction, since anyone who makes texts and images freely accessible on the internet must at least expect that they will be downloaded and printed out, raises concerns. This assumption leaves open why, on the one hand, authors should not receive any remuneration in cases of lack of consent and, on the other hand, the assumed consent to reproduction should at the same time contain a waiver of any remuneration.
Order of the Federal Constitutional Court of 30 August 2010, - 1 BvR 1631/08 -
Source: Press release of the Federal Constitutional Court No. 80/2010 of 21 September 2010
Goldberg Attorneys at Law
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist attorney for information technology law (IT law)
E-mail: info@goldberg.de
