Bundesverfassungsgericht

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Reprographic levy under the Copyright Act - Violation of the guarantee of a lawful judge by failure to consider a reference to the Court of Justice of the European Union

Press Release No. 80/2010 of 21 September 2010

Order of 30 August 2010
1 BvR 1631/08

In German copyright law, reproductions of a copyrighted work made for one's own use are permissible within certain limits. In consideration of the fact that the manufacturers and importers of reprographic devices create the possibility for the user to appropriate third-party copyrighted material by reproduction, they must pay what is known as a reprographic levy to the copyright holders. The previous version of § 54a.1 of the Copyright Act (Urheberrechtsgesetz - UrhG old), in force until 31 December 2007, provided for such a payment of the manufacturers and importers if it was to be expected from the nature of the work that it would be reproduced by photocopying or in a procedure with a comparable effect.

The complainant, which was the plaintiff in the original proceedings, protects the copyright of authors of written works as a copyright collecting society. The defendant in the original proceedings imports and sells office products including printers and plotters. The parties disputed as to whether printers and plotters are among the reprographic devices subject to remuneration under § 54a.1 UrhG old. The complainant filed a claim against the defendant for information on matters including the type and number of the printers and plotters sold by the defendant and on the specifications of these devices and also applied for a declaration that the defendant had an obligation of payment based on a specific rate. While the Regional Court (Landgericht) and the Higher Regional Court (Oberlandesgericht) granted the plaintiff's claim in essence, the Federal Court of Justice (Bundesgerichtshof) rejected its claim, in particular on the grounds that under the law applicable at the time only the reproduction of print works (analogue originals) was subject to the obligation of payment, but the reproduction of digital originals was not. Therefore, according to the Court, printers and plotters were not subject to the levy, even when used in combination with other devices (such as PCs and scanners).

The complainant submits that this decision violates the right of exploitation guaranteed to the authors of digital originals as property in Article 14.1 of the Basic Law (Grundgesetz - GG). In addition, it submits that there is a violation of the right to a lawful judge, because the Federal Court of Justice should first have submitted the question as to whether its interpretation of national copyright law contravened the mandatory requirements of Article 5.2.a of the Copyright Directive 2001/29/EC to the Court of Justice of the European Union (ECJ). Under this provision, Member States may pass legislation restricting the rights of reproduction of the authors of a work, for example with reference to copies by means of "any kind of photographic technique" or "some other process having similar effects", but subject to the condition that the rightholder receives "fair compensation".

The Second Chamber of the First Senate of the Federal Constitutional Court (Bundesverfassungsgericht) reversed the judgment and referred the matter back to the Federal Court of Justice.

In essence, the decision is based on the following considerations:

1. The judgment challenged by the complaint fails to consider the obligation to refer the matter to the Court of Justice of the European Union under Article 267.3 TFEU and therefore violates the guarantee of a lawful judge under Article 101.1 sentence 2 of the Basic Law.

Under the case-law of the Court of Justice of the European Union, a national court of last instance must comply with its obligation to refer a question of European Union law to the ECJ if it arises in proceedings pending at the national court, unless the court has found that the question raised is irrelevant to the issue or that the provision in question has already been interpreted by the ECJ or that the correct application of European Union law is so obvious as to leave no scope for any reasonable doubt. However, the Federal Constitutional Court reviews only whether the interpretation and application of Article 267.3 TFEU by the national (non-constitutional) court is obviously untenable. In this regard, the decisive factor is not primarily the justifiability of the non-constitutional court's interpretation of the substantive European Union law relevant to the case in question, but the justifiability of its handling of the obligation to refer under Article 267.3 TFEU.

The decision challenged violates the guarantee of a lawful judge. There is no indication that the Federal Court of Justice considered European law and a reference to the Court of Justice of the European Union at all, even though there are strong arguments in favour of an obligation to refer. At the very least, considering the Copyright Directive, defensible opinions different from that held by the Federal Court of Justice certainly do not appear impossible. It is doubtful whether the authors of digital originals may be excluded from the enjoyment of a reprographic levy system under European Union law, for the Copyright Directive does not expressly distinguish between analogue and digital originals. The wording of Article 5.2 of the Directive and the recitals do not exclude the possibility that the Directive is aimed solely at the result of the process of reproduction and not at the nature of the original. For the interpretation of the Copyright Directive provision in question, there is neither confirmed case-law of the ECJ, nor is the correct application of European Union law obvious. On the contrary, the legal question is highly disputed, which corresponds to the equally contentious interpretation of the similarly worded German law. In addition, the Member States have differing provisions as to whether devices or media are to bear any charges, and if so which devices or media, and what "fair compensation" the rightholders are to receive; with regard to the Spanish legislation, a reference for a preliminary ruling is already pending at the ECJ.

2. The Federal Court of Justice will also have to review whether the fundamental right to property under Article 14.1 of the Basic Law does not in itself call for an interpretation of § 54a UrhG old by which the complainant's claim is to be granted. In this case, a reference to the ECJ might be unnecessary, because answering the question of European law would not be relevant to the decision.

The constitutive elements of copyright as property within the meaning of the constitution include the fundamental attribution of the economic results of creative activity to the author by way of the provisions of private law, as well as the author's freedom to dispose of these results on his or her own responsibility.

The argument of the Federal Court of Justice that the authors of digital originals should receive no remuneration whatsoever fails to consider less drastic means, which in this case may consist in a limitation of the amount of remuneration. In addition, the interpretation and application of copyright law must, even in the light of the large number of technological innovations in this area, guarantee the intellectual property rights of authors. In view of the rapid proliferation of digital data storage and data reproduction, a restrictive interpretation of § 54a UrhG old might result in a complete gap in the protection of certain authors. Finally, objections to the judgment of the Federal Court of Justice need to be considered with regard to its assumption that in the case of digital originals - unlike print originals - the rightholder has often consented to reproduction, and that a person who makes texts and images freely accessible on the internet must at least expect that they will be downloaded and printed out. This assumption leaves the question unanswered as to why, on the one hand, authors receive no remuneration in cases of lack of consent, and why, on the other hand, the imputed consent to reproduction should at the same time imply a waiver of any remuneration whatsoever.