Federal Constitutional Court - Press office -

Press release no. 80/2010 of 21 September 2010

Order of 30 August 2010 
– 1 BvR 1631/08 (german / english)

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


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. 


This press release is also available in the original german version.