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European Business Law

Pursuant to Article 2 of Directive No 2001/29, an exclusive right “to authorize or prohibit direct or indirect, temporary or permanent reproduction by any means and in any form, in whole or part” must be laid down in favor of authors for their works (a) , of performers for fixations of their performances (b), of phonogram producers for their phonograms (c), of the producers of the first fixations  …

Reproduction right

Pursuant to Article 2 of Directive No 2001/29, an exclusive right “to authorize or prohibit direct or indirect, temporary or permanent reproduction by any means and in any form, in whole or part” must be laid down in favor of authors for their works (a) , of performers for fixations of their performances (b), of phonogram producers for their phonograms (c), of the producers of the first fixations of films, in respect of the original and copies of their films (d) and of broadcasting organizations for fixations of their broadcasts, whether those broadcasts are transmitted by wire or over the air, including by cable or satellite (e). The Court of Justice has held that national legislation may establish, as regards the exploitation of audiovisual archives by a body set up for that purpose, a rebuttable presumption that the performer has authorized the fixation and exploitation of his performances, where that performer is involved in the recording of an audiovisual work so that it may be broadcast .

A reproduction right is defined rather widely in order to guarantee a maximum level of protection for authors and holders of related rights. Traditionally, reproduction consists in materially fixing the work through any process that allows its communication to the public. This is the case for the storing of a protected work in digital form in an electronic medium  or, for online music, of all the intangible copies made in the process of online distribution of musical works . On the other hand, the technique of “sampling”, which consists in a user taking a sample from a phonogram, most often by means of electronic equipment, and using the sample for the purposes of creating a new work, constitutes a form of artistic expression which is covered by freedom of the arts, as protected in Article 13 of the Charter of Fundamental Rights of the European Union and is not a reproduction of that phonogram within the meaning of Article 2(c) of Directive No 2001/29 . The right of reproduction is an exclusive right that excludes exploitation without the authorization or consent of the proprietor .

The reproduction right is not unlimited however. Article 5 of the directive contains an exhaustive list of exceptions. Paragraph 1 provides for a mandatory exception subject to the fulfillment of five cumulative conditions : the act of reproduction must be an integral and essential part of a technological process , be temporary, transient or incidental, have as sole purpose to enable a transmission in a network between third parties by an intermediary or a lawful use of a work or other protected subject-matter, with no independent economic significance . The exception must be strictly interpreted , and the storage and deletion of the temporary reproduction must not be dependent on discretionary human intervention, particularly by the user of protected works. In effect, an act can be held “transient” only if its duration is limited to what is necessary for the proper completion of the technological process in question which must be automated and must not require human intervention once its completion has come to an end . According to the Court of Justice, if they satisfy the conditions of Article 5 of the directive,  copies on a user's computer screen and the copies in the internet “cache” of that computer's hard disk, made by an end-user in the course of viewing a website may be made without the authorization of the copyright holder . However, national legislation cannot give an approved collecting society the right to authorize the reproduction and communication to the public in digital form of “out-of-print” books, which are no longer commercially distributed by a publisher and are not currently published in print or in digital form, while allowing the authors of those books, or their successors in title, to oppose or put an end to that practice, on the conditions that that legislation lays down .

The following paragraphs of the directive list a series of exceptions to the right of reproduction that the Member States have the possibility to include in their domestic law, such as reproduction for private use by an individual , reproduction for the non-commercial purpose of scientific research or teaching by libraries  or educational establishments, quotations for purposes such as criticism or review of a work which has been lawfully made available to the public, the preservation of ephemeral recordings of works made by broadcasting organizations by means of their own facilities and for their own broadcasts  etc. (Article 5(2) and (3)). These exceptions apply only in certain special cases where they do not adversely affect the normal exploitation of the work or protected subject-matter and cause no unjustified damage to the legitimate interest of the rightholder . Thus, the Court of Justice has ruled that the saving of a copy of a work in storage space made available to a user in connection with a cloud computing service constitutes a reproduction of that work for the purposes of Article 5(2)(b) of Directive No  2001/29 . Directive No 2019 /790 on copyright in the digital single market has amended Directive No 2001/29 extending the scope of the education and research exception and above all making it mandatory (Art. 5, Directive No 2019/790). It also provides for two mandatory “text and data mining” exceptions (Articles 3 and 4), one of which is a public policy provision regarding extractions of lawfully accessible works or other protected subject matter, for the purposes of text and data mining, for the purpose of scientific research carried out by research organizations and cultural heritage institutions (Art. 3) and a  public policy exception allowing cultural heritage institutions to make copies of protected works or objects that are permanently in their collections for the purposes of preservation (Art. 6). Facultative exceptions to the reproduction right may besides be subject to the requirement of fair compensation to the rightholder . Fair compensation may even be provided for by the Member States for exceptions or limitations which do not require such compensation (recital 36). The form, detailed arrangements and possible level of such compensation are fixed by taking account of the particular circumstances of each case and the possible harm to the rightholders may constitute a valuable criterion. Thus, no payment would be owed in case of minimal prejudice or where the rightholders would have already received payment in some other form, for instance as part of a license fee (recital 35) . In all cases, Member States are precluded from allocating 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 . Furthermore, a scheme for fair compensation for private copying cannot be financed from the General State Budget insofar as it is not possible to ensure that the cost of that compensation is borne by the users of private copies . A Member State cannot, in its national law, lay down an exception or limitation, other than those provided for in Article 5 of the directive . Likewise, freedom of information and freedom of the press are not capable of justifying, beyond the exceptions or limitations provided for in Article 5 of the directive, a derogation from the author's exclusive rights .

The author's exclusive right concerns all or part of his work. Parts of a work are governed by the same system as the work as a whole where they share its originality. In order to be protected, the component of a work must therefore be the reflection of its author's own intellectual creation. Thus, in newspaper articles, even though the words cannot be protected in themselves, their choice, combination and sequence give them an original character. Thus sentences or parts of sentences are liable to be original and to justify a prohibition from reproduction .

 An intellectual creation of the author reflecting his personality and expressing his free and creative choices in its production constitutes a protected work: Case C-145/10 Painer, Judgment of 1 December 2011,  LawLex201200000614JBJ, for a portrait photograph.

Case C-484/18 PG, GF, Syndicat indépendant des artistes-interprètes (SIA-UNSA), Syndicat français des artistes-interprètes (CGT), Judgment of 14 November 2019, LawLex201900001392JBJ, holding that a performer who is himself involved in the making of an audiovisual work so that it may be broadcast by national broadcasting companies, and who is thus present at the place where such a work is recorded for those purposes, is aware of the envisaged use of his performance and gives his performance for the purposes of such use, with the result that it is possible to take the view, in the absence of evidence to the contrary, that he has, as a result of that involvement, authorized the fixation of that performance and its exploitation.

Case C-5/08 Infopaq International [2009] ECR I-6569, LawLex201100000245JBJ, pt 64, where the condition is not met because the deletion of the reproduction is dependent on the user's will only.

Case C-360/13 Public Relations Consultants Association Ltd, Judgment of 5 June 2014, LawLex201400002047JBJ.

Case C-301/15 Soulier and Doke, Judgment of 16 November 2016, LawLex201600002065JBJ.

Although it is open to the Member States to introduce a private copying exception to the author's exclusive reproduction right, the fair compensation paid to affected authors cannot be freely defined by each State but constitutes an autonomous concept which must be uniformly interpreted on the territory of the EU: Case C-467/08 Padawan, LawLex201100000361JBJ. Thus a fair compensation vests by operation of law, directly and originally, in the principal director, in his capacity as author or co-author of the cinematographic work, and national legislation cannot deprive him/her of this right by laying down a non-rebuttable presumption of transfer in favor of the producer of a work: Case C-277/10 Luksan, Judgment of 9 February 2012, LawLex201200000697JBJ. A national rule may indiscriminately apply a private copying levy on the first placing on the market in the national territory, for commercial purposes and for consideration, of recording media suitable for reproduction, while at the same time providing for a right to reimbursement of the levies paid in the event that the final use of those media does not meet the criteria set out in Article 5(2)(b) of Directive No 2001/29: Case C-521/11 Amazon.com International Sales Inc., Judgment of 11 July 2013, LawLex201300001121JBJ; National legislation that has transposed the exception referred to in Article 5(2)(b) of Directive No 2001/29 is entitled not to make the providers of storage services in the context of cloud computing subject to the payment of fair compensation in respect of the unauthorized saving of copies of copyright-protected works by natural persons, who are users of those  services, for private use and for ends that are neither directly nor  indirectly commercial, insofar as that legislation provides for the  payment of fair compensation to the rightholders: Case C-433/20 Austro-Mechana Gesellschaft zur Wahrnehmung mechanisch-musikalischer Urheberrechte Gesellschaft mbH, Judgment of 24 March 2022, LawLex202200001944JBJ.

Case C-117/13 Technische Universität Darmstadt, Judgment of 11 September 2014, LawLex201400000885JBJ, requiring that the holder of copyright and related rights and a publicly accessible library must have concluded a licensing agreement in respect of the work in question that sets out the conditions in which that establishment may use that work.

Case C-510/10 DR; TV2 Danmark A/S v NCB, Judgment of 26 April 2012, LawLex201200000962JBJ, extending the exception to recordings made by any third party acting on behalf of or under the responsibility of that organization.

The private copying exception does not cover reproduction for private use made from a source which is unlawful: Case C-435/12 ACI Adam BV nd others, Judgment of 10 April 2014, LawLex201400001839JBJ.

Case C-433/20 Austro-Mechana Gesellschaft zur Wahrnehmung mechanisch-musikalischer Urheberrechte Gesellschaft mbH, Judgment of 24 March 2022, LawLex202200001944JBJ.

Particularly in case of reproductions on paper or any similar medium by the use of any kind of photographic technique or by some other process having similar effects, with the exception of sheet music, reproductions on any medium made by a natural person for private use and for ends that are neither directly nor indirectly commercial, reproduction of broadcast by social institutions pursuing non-commercial purpose, such as hospitals or prisons.

On the private copying levy imposed as fair compensation, see Case C-457/11 Verwertungsgesellschaft Wort, Judgment of 27 June 2013, LawLex201300001028JBJ validating the levy required for private copying imposed by means of photcopying.

Article 9 of the Bern Convention; WIPO Copyright Treaty of 20 December 1996, Agreed Statement concerning Article 1.4). Also see Case C-433/20 Austro-Mechana Gesellschaft zur Wahrnehmung mechanisch-musikalischer Urheberrechte Gesellschaft mbH, Judgment of 24 March 2022, LawLex202200001944JBJ: holding that the words “any medium” refer to all media on which a  protected work may be reproduced, including servers such as those used  in cloud computing without it being necessary to distinguish whether the  copy is made on a storage space made available to the user by a third  party or on a physical recording medium belonging to that user.

Case C-572/13 Hewlett-Packard Belgium SPRL v Reprobel SCRL Epson Europe BV, Judgment of 12 November 2015, LawLex201500001434JBJ.

Case C-470/14 Entidad de Gestión de Derechos de los Productores Audiovisuales (EGEDA), Judgment of 9 June 2016, LawLex201600001353JBJ.

Case C-476/17 Pelham GmbH, Moses Pelham, Martin Haas, Judgment of 29 July 2019, LawLex201900000988JBJ.

Case C-469/17 Funke Medien NRW GmbH v Germany, Judgment of 29 July 2019, LawLex201900000989JBJ; Case C-516/17 Spiegel Online GmbH v Volker Beck, Judgment of 29 July 2019, LawLex201900000990JBJ.  

Case C-5/08 Infopaq International [2009] ECR I-6569, LawLex201100000245JBJ.

Commission Recommendation No 2005/737 of 18 May 2005 on collective cross-border management of copyright and related rights for legitimate online music, OJ L 276, 21 October 2005, 54-57, point 1), f), i).

Case C‑575/23 FT, AL, ON, Judgment of 6 March 2025, LawLex202500006421JBJ.

Case C-527/15 Stichting Brein, Judgment of 26 April 2017, LawLex201700000752JBJ: acts of reproduction, on a multimedia player, of copyright-protected works obtained from streaming websites belonging to third parties offering those works without the consent of the copyright holders do not satisfy the cumulative conditions for exemption from the reproduction right insofar as those acts do not have as their sole purpose to enable the transmission in a network between third parties by an intermediary or a lawful use of a work or protected subject matter and cause unreasonable prejudice to the legitimate interests of the right holders resulting in a diminution of lawful transactions relating to the protected works.

This exception covers acts that allow acts of browsing and catching: recital 33. For an example see Case C-302/10 Infopaq International A/S Judgment of 17 January 2012, LawLex201200000694JBJ.

Case C-5/08 Infopaq International [2009] ECR I-6569, LawLex201100000245JBJ; Case C-403/08 Football Association Premier League LTD, Judgment of 4 October 2011, LawLex201100001693JBJ, on the temporary nature of acts of reproduction carried out within the memory of a satellite decoder and on a television screen.

Article 5 thus indicates that these exceptions “shall only be applied in certain special cases which do not conflict with a normal exploitation of the work or other subject-matter and do not unreasonably prejudice the legitimate interests of the rightholder”.

European Business Law

260. Reproduction right

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

260. Reproduction right

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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au contenu exclusif Livv – juristes d’entreprise