Reprobel and fair compensation: CJEU rules on what the InfoSoc Directive does not allow

The Court of Justice of the European Union (CJEU) gave its ruling this morning in Case C‑572/13, Hewlett-Packard Belgium SPRL v Reprobel SCRL, intervener Epson Europe BV, a request for a preliminary ruling under from the Cour d’appel de Bruxelles (Court of Appeal, Brussels, Belgium). Since Eleonora Rosati is preparing a commentary for the IPKat, readers are referred to that weblog for her thoughts on the ruling once they are published [Eleonora's post is now up and running here]. Below we offer a simple account of the facts, the questions posed and the answers that the CJEU gave to them.

In short, Hewlett-Packard (HP) imported reprographic devices into Belgium for business and household use, including ‘multifunction’ devices, the main function of which was the printing of documents at different speeds depending on the print quality.  Reprobel, a rights management company, collected and distributed sums corresponding to fair compensation under Directive 2001/29, the InfoSoc Directive's reprography exception in Article 5(2).

In August 2004, Reprobel told HP that its sale of ‘multifunction’ printers should entail, in principle, the payment of a levy of EUR 49.20 per printer. Following six years of inconclusive meetings and correspondence, HP sought a declaration that no remuneration was owed for the printers which it had offered for sale or that, if such remuneration was owed, the remuneration which it had already paid corresponded to the fair compensation owed under the Belgian legislation, interpreted in the light of Directive 2001/29. HP also claimed that Reprobel should be ordered to carry out within the year, on pain of a periodic penalty payment of EUR 10 million, a study consistent with that referred to in Article 26 of the Royal Decree of 30 October 1997 concerning the remuneration of authors and publishers for copies made for private or didactic purposes of works fixed on a graphic or similar medium and also concerning the number of printers in dispute and their actual use as copiers of protected works for the purpose of comparing that use with the actual use of all other devices for the reproduction of protected works.

In separate but subequently joined proceedings Reprobel summoned HP and sought an order that HP pay it the provisional sum of EUR 1 towards the remunerative payments which Reprobel considered were owed under the Royal Decree.

In November 2012 the Tribunal de première instance de Bruxelles (Court of First Instance, Brussels) ruled that the Royal Decree was incompatible with European law.  This sparked of appeals by both HP and Reprobel to the Cour d’appel de Bruxelles (Court of Appeal, Brussels). That court decided to stay the proceedings and to refer the following questions to the CJEU for a preliminary ruling:

‘1. Must the term “fair compensation” contained in Article 5(2)(a) and Article 5(2)(b) of Directive 2001/29 be interpreted differently depending on whether the reproduction on paper or a similar medium effected by the use of any kind of photographic technique or by some other process having similar effects is carried out by any user or by a natural person for private use and for ends that are neither directly nor indirectly commercial? If the answer is in the affirmative, on what criteria must that difference of interpretation be based?

2. Must Article 5(2)(a) and Article 5(2)(b) of Directive 2001/29 be interpreted as authorising the Member States to fix the fair compensation payable to rightholders in the form of:

(a) lump-sum remuneration paid by the manufacturer, importer or intra-Community acquirer of devices enabling protected works to be copied, at the time when such devices are put into circulation on national territory, the amount of which is calculated solely by reference to the speed at which the copier is capable of producing a number of copies per minute, without being otherwise linked to any harm suffered by rightholders; and

(b) proportional remuneration, determined solely by means of a unit price multiplied by the number of copies produced, which varies depending on whether or not the person liable for payment has cooperated in the collection of that remuneration, which is payable by natural or legal persons making copies of works or, as the case may be, in lieu of those persons, by those who, for consideration or free of charge, make a reproduction device available to others?

If the reply to this question is in the negative, what are the relevant and consistent criteria that the Member States must apply in order to ensure that, in accordance with European Union law, the compensation may be regarded as fair and that a fair balance is maintained between the persons concerned?

3. Must Article 5(2)(a) and Article 5(2)(b) of Directive 2001/29 be interpreted as authorising the Member States to allocate half of the fair compensation due to rightholders to the publishers of works created by authors, the publishers being under no obligation whatsoever to ensure that the authors benefit, even indirectly, from some of the compensation of which they have been deprived?

4. Must Article 5(2)(a) and Article 5(2)(b) of Directive 2001/29 be interpreted as authorising the Member States to introduce an undifferentiated system for recovering the fair compensation due to rightholders in the form of a lump-sum and an amount for each copy made, which, implicitly but indisputably, covers in part the copying of sheet music and counterfeit reproductions?’

In February 2014 the Cour d’appel de Bruxelles allowed Epson Europe BV - - another manufacturer of multifunctional devices -- to intervene in the dispute in the main proceedings.

Today the CJEU ruled as follows, the bits that refer to national Belgian law being emphsized in bold.:

1. Article 5(2)(a) and Article 5(2)(b) of Directive 2001/29 ...must be interpreted as meaning that, with regard to the phrase ‘fair compensation’ contained in those provisions, it is necessary to draw a distinction according to whether the reproduction on paper or a similar medium effected by the use of any kind of photographic technique or by some other process having similar effects is carried out by any user or by a natural person for private use and for ends that are neither directly nor indirectly commercial.

2. Article 5(2)(a) and Article 5(2)(b) of Directive 2001/29 preclude national legislation, such as that at issue in the main proceedings, which authorises the Member State in question to allocate a part of the fair compensation payable to rightholders to the publishers of works created by authors, those publishers being under no obligation to ensure that the authors benefit, even indirectly, from some of the compensation of which they have been deprived.

3. Article 5(2)(a) and Article 5(2)(b) of Directive 2001/29 preclude, in principle, national legislation, such as that at issue in the main proceedings, which introduces an undifferentiated system for recovering fair compensation which also covers the copying of sheet music, and preclude such legislation which introduces an undifferentiated system for recovering fair compensation which also covers counterfeit reproductions made from unlawful sources.

4. Article 5(2)(a) and Article 5(2)(b) of Directive 2001/29 preclude national legislation, such as that at issue in the main proceedings, which introduces a system that combines, in order to finance the fair compensation payable to rightholders, two forms of remuneration, namely, first, lump-sum remuneration paid prior to the reproduction operation by the manufacturer, importer or intra-Community acquirer of devices enabling protected works to be copied, at the time when such devices are put into circulation on national territory, and, second, proportional remuneration paid after that reproduction operation and determined solely by means of a unit price multiplied by the number of copies produced, which is payable by the natural or legal persons who make those copies, in so far as:

– the lump-sum remuneration paid in advance is calculated solely by reference to the speed at which the device concerned is capable of producing copies;

– the proportional remuneration recovered after the fact varies according to whether or not the person liable for payment has cooperated in the recovery of that remuneration;

– the combined system, taken as a whole, does not include mechanisms, in particular for reimbursement, which allow the complementary application of the criterion of actual harm suffered and the criterion of harm established as a lump sum in respect of different categories of users.

Now it's all up to the Cour d’appel de Bruxelles!

High Court quashes UK's right to private copy Regulations

The High Court in London has quashed provisions in the Copyright and Rights in Performances (Personal Copies for Private Use) Regulations 2014 introduced by the UK government in October 2014 to allow members of the public to lawfully copy CDs and other copyright material bought for their own private use. 

In June in  BASCA v Secretary of State for Innovation and Skills [2015] EWHC 1723 (Admin) the High Court ruled against the UK Government in a Judicial Review brought by the British Academy of Songwriters, Composers and Authors (BASCA), the Musicians’ Union (MU) and UK Music. These three bodies challenged the Government’s decision to introduce a private copying exception into UK copyright law, arguing that it was unlawful because it failed to provide fair compensation to rightholders in line with European law.

The Department for Business, Innovation and Skills said when introducing the new regulations that they would cause only zero or insignificant harm, thus making compensation unnecessary. But Mr Justice Green, sitting in London, ruled last month that the evidence relied on by the government simply did not justify the claim that the harm would be “de minimis”. The organisation that represents all sectors of the UK music industry, UK Music, estimated that the new regulations, without a compensation scheme, would result in loss of revenues for rights owners in the creative sector of £58m a year. 

On Friday, in a further decision, Mr Justice Green said: “It is clear that I should quash the Regulations. I make clear this covers the entirety of the regulations and all the rights and obligations contained therein.” In particular Green J said:

[5]. I have now received detailed and constructive submissions from the parties. The Secretary of State has accepted the position that the Regulations should be quashed. He states as follows:

“4. The Secretary of State welcomes the guidance which the Court has provided as to the correct approach to be adopted as a matter of law when considering the introduction of a private copying exception, and as to the scope and nature of the factual enquiries which are necessary. He will now take the opportunity to reflect further and in due course take a view as to whether, and in what form, any further factual enquiries should be carried out and whether a new private copying exception should be introduced. The Secretary of State has not decided on any specific course at this stage and wishes to take time to reflect before making any further decisions. He would not wish to create any uncertainty in the law by submitting that the Regulations remain in force while further policy decisions are made.

5. Given that the Secretary of State submits that a quashing order is appropriate at this stage, there is no necessity for a reference to the CJEU. As is made clear in the body of the Judgment, the Judge’s conclusion leading to the ruling that the decision was unlawful did not depend on his conclusions on issues of EU law, in particular as to the meaning of “harm” (the issue identified by the Judge is a matter for a potential reference)”

[11]  It is clear that I should quash the Regulations. I make clear that this covers the entirety of the Regulations and all of the rights and obligations contained therein. The Judgment concerned the personal and private use exception in section 28B; but the Regulations for example also introduce analogous exceptions for performing rights in Schedule 2 paragraph 1B CDPA 1988. The Regulations are thus quashed.

And turning to the matter of whether the Regulations should be quashed, ex nunc or ex tunc:

[19]. In the circumstances of this case I will declare that the Regulations are prospectively unlawful. However, I am not prepared to rule upon the position ex tunc. It seems to me that the declaration sought raises potentially complex and far reaching issues which it is appropriate to address in the circumstances of private law litigation between a specific rightholder and an alleged infringer. It will be for a defendant in future proceedings to explore and raise this issue, including whether the effect of the fact that they relied at the time upon Section 28B creates some species of estoppel, legitimate expectation or fair use defence in private law and whether, if such exists, this goes to the cause of action or the remedy or both. 

And explaining why the Court was not referring the matter to the Court of Justice of the European Union:

[30] ... Nothing that I have said in this ruling should be taken as an indication as to the decision that a future Court might make upon an application by the Claimants (or others) for a reference in the future. This is not an encouragement to a further application. It is clear from the Judgment that I considered a reference to be appropriate essentially because of the importance of the issue. I did not, however, consider the issue ultimately to be one of great difficulty. To succeed upon the issue before the Court of Justice the Claimants would have to persuade the Court of Justice that there was no discretion on the part of the Member States as to the choice of test for the computation of harm (as to which in the Judgment I set out fully the relatively extensive case law of the Court indicating that such a discretion did in fact exist), and, that the only lawful test was the licensing test. Alternatively, the Claimants would have to convince the Court that if there was a discretion conferred upon Member States, that it was outwith the appropriate margin of appreciation accorded to Member States for the Defendant to adopt the “lost sales” test. I consider that achieving success on a reference raising these issues would be no mean feat.

http://www.theguardian.com/uk-news/2015/jul/17/high-court-quashes-regulations-copy-cds-musicians

The Queen on the application of (1) The British Academy of Songwriters, Composers and Authors (2) Musicians' Union (3) UK Music 2009 Limited v Secretary of State for Business Innovation & Skills (Incorporated Society of Musicians Intervening) [2015] EWHC 2041 (Admin)

Copydan and fair compensation for multifunctional media: CJEU rules

The Court of Justice of the European Union (CJEU) yesterday ruled in Case C‑463/12 Copydan Båndkopi v Nokia Danmark A/S in the latest in a series of responses to requests for preliminary rulings conernning private copying levies. This ruling, in response to a reference from the Danish Østre Landsret back in October 2012, is a long one; it has however been covered in exemplary fashion on the IPKat weblog by Tom Ohta, here.

The national proceedings involve an action brought by rights-holders' body Copydan Båndkopi against Nokia for payment of a private copying levy in respect of memory cards imported into Denmark. In short, the CJEU considered fair compensation in the context of multifunctional media. It also looked at the distinction between media and components in the application of the private copying levy and the prospect of there being an exemption from payment on the basis that the prejudice to rights-holders might be minimal. The judgment reviews earlier CJEU case law including C-467/08 Padawan , C-521/11 Amazon.com and C-425/12 ACI Adam.

Fair compensation for private copying: another EGEDA reference

EGEDA is no stranger to this weblog, having featured in this post on Case C-387/09 Entidad de Gestión de Derechos de los Productores Audiovisuales (EGEDA) v Magnatrading S.L., a private copying "fair compensation" reference for a preliminary ruling from the Spanish Juzgado Mercantil that was lodged on 1 October 2009 and resolved by a brief Order just over a year later.  Another EGEDA "fair compensation" reference is in the air, as a media release from the UK Intellectual Property Office tells us:

CJ case: C-470/14: EGEDA and others

We have received notification of a new case referred to the Court of Justice of the European Union (CJEU): C-470/14: A reference from the Spanish Court concerning its domestic scheme for the payment of fair compensation for private copying.

The questions referred to the Court of Justice (CJ) for a preliminary ruling are:

1. Is a scheme for fair compensation for private copying compatible with Article 5(2)(b) of Directive 2001/29/EC where the scheme, taking as a basis an estimate of the harm actually caused, is financed from state resources, and the cost of compensation is therefore not borne by the users of those private copies?

2. If yes, is the scheme compatible with that provision where the total amount allocated via state resources to fair compensation for private copying has to be set within budgetary limits established for each financial year?

This case and the questions referred to the Court can also be viewed on our website at:

https://www.gov.uk/government/publications/references-to-the-european-court-of-justice/references-to-the-european-court-of-justice-2014

If you would like to comment on this case please e-mail [email protected] by 01 December 2014.

The media release adds the following information:

We understand how difficult it is to provide detailed comments in the time available. The IPO has tight time limits in which to consider and provide advice to ministers on CJ cases. In order to help us provide the right advice, we just need a short email by the deadline stating whether you think the UK should intervene and some general points about how you think we should answer the questions.

You are welcome to follow this email up with more detailed comments after the deadline, which can be taken into consideration if we have chosen to submit observations or if we decide to attend a hearing.

If you are aware of any references to the Court of Justice that are not currently included on our website, you are also welcome to send us your views. If you choose to do this, please include clear information about the case to help us to identify it.

Further information on intellectual property CJ cases can be found on our website https://www.gov.uk/government/publications/references-to-the-european-court-of-justice.

Fair compensation for private copying effected through more than one device

Last Thursday the Court of Justice of the European Union (CJEU) gave judgment in Joined Cases C-457/11 to C-460/11 Verwertungsgesellschaft Wort (VG Wort) v Kyocera, Epson Deutschland GmbH, Xerox GmbH, Canon Deutschland GmbH and Fujitsu Technology Solutions GmbH, Hewlett-Packard GmbH v VG Wort. Further comment and analysis will be forthcoming, but in the meantime we take the liberty of posting the content of a very helpful press release from Curia, which reads as follows:

The levy for the reproduction of protected works can be imposed on the sale of a printer or a computer

Member States enjoy a broad discretion to determine who must pay that levy, the purpose of which is to compensate authors for the reproduction of their work without their authorisation

According to EU law [that's 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 (OJ 2001 L 167, p. 10)], Member States should grant, in principle, to authors and the holders of related rights, the exclusive right to authorise or prohibit reproduction of their protected works or other subject matter. However, Member States may provide for exceptions or limitations to that exclusive right. Accordingly, they may permit, in particular (i) the making of private copies and (ii) reproductions on paper or any similar medium, using any kind of photographic technique or by some other process having similar effects. A Member State which avails itself of this option must, however, provide that the copyright holders receive ‘fair compensation’ ['Fair compensation' is a difficult and elusive topic which this blog has frequently had cause to address: see posts here]. That compensation is to compensate authors for the reproduction, without their authorisation, of their protected works. 

The Bundesgerichtshof (Federal Court of Justice, Germany) is called on to give judgment in proceedings concerning the fair compensation owed for the reproduction of protected works made with the use of a chain of devices, including, in particular, a printer and a personal computer, principally where the two are linked together. In those proceedings, VG Wort, the authorised copyright collecting society representing authors and publishers of literary works in Germany, requests that Canon, Epson, Fujitsu, Hewlett-Packard, Kyocera and Xerox be ordered to provide information to it on the nature and quantity of printers that they have sold since 2001. In addition, VG Wort claims that Kyocera, Epson and Xerox should be ordered to pay it remuneration by way of a levy on personal computers, printers and/or plotters marketed in Germany between 2001 and 2007. In those circumstances, the Bundesgerichtshof has requested the Court of Justice to provide it with an interpretation of the relevant provisions of EU law.

In today’s judgment, the Court of Justice, in response, states that the concept of ‘reproductions on paper or any similar medium, effected by the use of any kind of photographic technique or by some other process having similar effects’ includes reproductions made using a printer or a personal computer where the two are linked together [Indeed, it would be difficult to imagine how the court could state otherwise]. In this case, it is open to the Member States to put in place a system according to which the fair compensation is paid by the persons in possession of a device contributing, in a non-autonomous manner, to that single reproduction process of the protected work or other subject-matter on the given medium in so far as those persons have the possibility to pass on the cost of the levy to their customers, provided that the overall amount of fair compensation owed as recompense for the harm suffered by the author at the end of that single process must not be substantially different from the fixed amount owed for the reproduction obtained through the use of one single device [so the compensation depends on the fact of the copying, not the number of devices by which it is effected].

Moreover, the Court finds that an act by which a rightholder may have authorised reproduction of his protected work or other subject-matter has no bearing on the fair compensation owed. The Court states that, in addition, the non-application of the technological measures designed to prevent or restrict unauthorised reproduction cannot have the effect that no fair compensation is due for private copying. The application, by the rightholders, of such measures is voluntary. Nevertheless, it is open to the Member State concerned to make the actual level of compensation owed to rightholders dependent on whether or not such technological measures are applied, so that those rightholders are encouraged to make use of them and thereby voluntarily contribute to the proper application of the private copying exception [But should this mean that compensation is higher or lower when technological measures are used? Arguments can be constructed in favour of both propositions].

Lastly, the Court holds that the relevant legislation ‒ a directive which came into force on 22 June 2001 and which the Member States had to transpose into national law by 22 December 2002 at the latest ‒ does not apply to the acts of using protected works or other subject-matter which took place before that date.

Watch this space for further comments.

Copydan Båndkopi reference heads for Luxembourg

Case C-463/12 Copydan Båndkopi is the latest case to be referred to the Court of Justice of the European Union (CJEU) for preliminary rulings on a number of questions relating to fair compensation of right holders. The questions, cut-and-pasted from the UK Intellectual Property Office website, are as follows:

1. Is it compatible with Directive 2001/29/EC [the InfoSoc Directive] for Member States to have legislation which guarantees compensation for the rightholders for reproductions made using the following sources:

(1) files where the use in question is approved by the rightholders and paid for by the customer (licensed content from online shops, for example);

(2) files where the use in question is approved by the rightholders and not paid for by the customer (licensed content, for example, in connection with a marketing action);

(3) the user’s own DVD, CD, MP3 player, computer, etc., where effective technological measures are not applied;

(4) the user’s own DVD, CD, MP3 player, computer, etc., where effective technological measures are applied;

(5) a third party’s DVD, CD, MP3 player, computer, etc.;

(6) unlawfully copied works from the Internet or other sources;

(7) files copied lawfully in some other way from, for example, the Internet (from lawful sources where no licence has been granted)?

2. How must effective technological measures be taken into account, (ref.Article 6 of the Directive) in the Member States’ legislation on compensation for rightholders (ref. Article 5(2)(b) of the Directive)?

3. In the calculation of compensation for private copying (ref. Article 5(2)(b) of the Directive), what constitutes ‘situations where the prejudice to the rightholder would be minimal’, as referred to in recital 35 in the preamble to the Directive, with the result that it will not be compatible with the Directive for the Member States to have legislation which provides for compensation for rightholders for such copying for private use (ref. in this connection the survey referred to in part 2 above)?

4. (a) If it is assumed that the primary or most important function of memory cards in mobile phones is not private copying, is it compatible with the Directive for the Member States to have legislation which guarantees compensation for rightholders for copying on mobile phone memory cards?

(b) If it is assumed that private copying is one of the several primary or essential functions of memory cards in mobile phones, is it compatible with the Directive for the Member States to have legislation which guarantees compensation for rightholders for copying on mobile phone memory cards?

5. Is it compatible with the concept of ‘fair balance’ in recital 31 in the preamble to the Directive and with the uniform interpretation of the concept of ‘fair compensation’ (ref. Article 5(2)(b) of the Directive), which must be based on ‘prejudice’, for the Member States to have legislation under which remuneration is collected for memory cards, whereas no remuneration is collected for internal memory such as MP3 players or iPods, which are designed and primarily used for private copying?

6. (a) Does the Directive preclude the Member States from having legislation which provides for the collection of remuneration for private copying from a producer and/or importer who sells memory cards to business concerns which sell the memory cards on to both private and business customers, without the producer’s and/or importer’s having knowledge of whether the memory cards have been sold to private or business customers?

(b) Is the answer to question 6(a) affected if provisions are laid down in a Member State’s legislation which ensure that producers, importers and/or distributors do not have to pay remuneration for memory cards used for professional purposes, that producers, importers and/or distributors, where the remuneration has nevertheless been paid, can have the remuneration for memory cards refunded in so far as they are used for professional purposes, and that producers, importers and/or distributors can sell memory cards to other undertakings registered with the organisation which administers the remuneration scheme, without payment of remuneration?

(c) Is the answer to questions 6(a) and 6(b) affected

(1) if provisions are laid down in a Member State’s legislation ensuring that producers, importers and/or distributors do not have to pay remuneration for memory cards used for professional purposes, but the concept of ‘professional purposes’ is interpreted as conferring a right of deduction applying only to undertakings approved by Copydan, whereas remuneration must be paid for memory cards used professionally by other business customers which are not approved by Copydan;

(2) if provisions are laid down in a Member State’s legislation ensuring that producers, importers and/or distributors, where the remuneration has in fact been paid (theoretically), can have remuneration for memory cards refunded where they are used for professional purposes, but (a) it is in practice only the purchaser of the memory card who can have the remuneration refunded, and (b) the purchaser of memory cards must submit an application for refund of remuneration to Copydan;

(3) if provisions are laid down in a Member State’s legislation ensuring that producers, importers and/or distributors may sell memory cards to other undertakings registered with the organisation which administers the remuneration scheme, without payment of remuneration, but (a) Copydan is the organisation which administers the remuneration scheme and (b) the registered undertakings have no knowledge of whether the memory cards have been sold to private or business customers?

If you would like to tell the IPO what you think about this case please email [email protected] by 12 December 2012.

This blogger has, as usual, no idea of the background to this reference, though he knows that Copydan is a Danish body and suspects therefore that this reference emanates from Denmark.  He also notes that some of the questions descend to a level of factual specificity which, he thinks, make it improbable that the CJEU will provide detailed answers.

If any readers can shed light on the background to this case, we will all be grateful.

What is fair compensation? Amazon goes to the CJEU

A new case concerning copyright has made its way to the Court of Justice. This is Case C-521/11 Amazon.com International Sales and Others, a reference from the Oberster Gerichtshof (Supreme Court, Austria), concerning action for account and equitable remuneration for recording media - fair compensation for the purposes of Article 5(2)(b) of the InfoSoc Directive. As reported in the IPO's website, the case raises the following questions:

The judges of the CJEU clarifying what fairy compensation is

1. Can a legislative scheme be regarded as establishing 'fair compensation' for the purposes of Article 5(2)(b) of Directive 2001/29/EC, where:

a. the persons entitled under Article 2 of Directive 2001/29/EC have a right to equitable remuneration, exercisable only through a collecting society, against persons who, acting on a commercial basis and for remuneration, are first to place on the domestic market recording media capable of reproducing the works of rightholders,

b. this right applies irrespective of whether the media are marketed to intermediaries, to natural or legal persons for use other than for private purposes or to natural persons for use for private purposes, and

c. the person who uses the media for reproduction with the authorisation of the rightholder or who prior to its sale to the final consumer re-exports the media has an enforceable right against the collecting society to obtain reimbursement of the remunerations?

2. If Question1 is answered in the negative:

2.1. Does a scheme establish 'fair compensation' for the purposes of Article 5(2)(b) of Directive 2001/29/EC if the right specified in Question 1(a) applies only where recording media are marketed to natural persons who use the recording media to make reproductions for private purposes?

2.2. If question 2.1. is answered in the affirmative:
Where recording media are marketed to natural persons must it be assumed until the contrary is proven that they will use such media with a view to making reproductions for private purposes?

3. If Question 1 or 2.1. is answered in the affirmative:
Does it follow from Article 5 of Directive 2001/29/EC or other provisions of EU law that the right to be exercised by a collecting society to payment of fair compensation does not apply if, in relation to half of the funds received, the collecting society is required by law not to pay these to the persons entitled to compensation but to distribute them to social and cultural institutions?

4. If Question 1 or 2.1. is answered in the affirmative:
Does Article 5(2)(b) of Directive 2001/29/EC or other provision of EU law preclude the right to be exercised by a collecting society to payment of fair compensation if in another Member State - possibly on a basis in conformity with EU law - equitable remuneration for putting the media on the market has already been paid?