Examples of using Copying exception in English and their translations into Slovak
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Computer
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Programming
The private copying exception under Directive 2001/29.
National legislation which does not distinguish between lawful andunlawful private reproductions cannot ensure a proper application of the private copying exception.
Recalls the importance of the private copying exception that may not be technically limited, coupled with fair compensation of creators;
National legislation which does not distinguish between lawful and unlawful private reproductions is notcapable of ensuring a proper application of the private copying exception.
The scope of application of the private copying exception cannot, therefore, be extended to situations that are not expressly provided for in Directive 2001/29.
Directive 2001/29 does not use the term‘right' in connection with private copying and thus does not enter into thedebate in legal theory about the nature of the private copying exception.
First, it would extend the scope of the private copying exception far beyond the special cases defined by the directive, and thus breach the first condition laid down by that provision.
Since the principal director of a cinematographic work is one of those rightholders, he must, consequently, be regarded as a person entitled by operation of law, directly and originally,to the fair compensation payable under the private copying exception.
Nevertheless, the scope and reach of the private copying exception cannot be defined by reference to provisions which apply in entirely different contexts and which pursue ends that are peculiar to them.
(32) According to that judgment, Article 5(2)(b) of the InfoSoc Directive must be interpreted as meaning that fair compensation must be calculated on the basis of the criterion of the harm caused toauthors of protected works by the introduction of the private copying exception.
However, the second subparagraph of Article 6(4),which relates solely to the private copying exception, differs from the first subparagraph(66) in that it makes no reference to the lawfulness of the access to the protected work or other subject-matter.
Article 5(2)(b) of Directive 2001/29 must be interpreted as meaning that the‘fair balance' between the persons concerned means that fair compensation must be calculated on the basis of the criterion of the harm caused toauthors of protected works by the introduction of the private copying exception.
In that regard, it must, first, be pointed out that, under that provision,Member States which decide to introduce the private copying exception into their national law are required to provide for the payment of‘fair compensation' to rightholders.
The Copyright Directive permits Member States to lay down an exception to the exclusive reproduction right of holders of copyright and related rights so thatprivate copies may be made(the private copying exception).
With regard to the right to thefair compensation payable to authors under the private copying exception, it does not follow from any provision of Directive 2001/29 that the European Union legislature envisaged the possibility of that right being waived by the person entitled to it.
It is for that reason that the Court has held that the fair compensation referred to in Article 5(2)(b) of Directive 2001/29 must necessarily be calculated on the basis of the harm caused toauthors of protected works by the introduction of the private copying exception;
Lastly, the private copying exception, as a‘compensated exception' imposes on Member States an obligation not only to establish a level of fair compensation payable to rightholders, but also to recover that compensation effectively(25) and, most certainly, to ensure its distribution among rightholders.
The appellants in the main proceedings, the Spanish, Italian and Lithuanian Governments and the Commission agree that, havingregard to the letter, spirit and purpose of Directive 2001/29, the private copying exception provided for in Article 5(2)(b) of the directive cannot apply to reproductions made from unlawful sources.
Where it is implemented by a Member State, the private copying exception enables(22)natural persons in possession of works or other subject-matter protected by copyright or related rights to make a copy thereof for private use and for ends that are neither directly nor indirectly commercial.
First of all, it should be made clear that since the question asked refers solely to the fair compensation provided for in Article 5(2)(b)of Directive 2001/29 under the private copying exception, it will be answered from the point of view of only the reproduction right and the related right to fair compensation.
Indeed, the application at the origin of the present dispute was brought not by proprietors of rights(84) seeking to defend those rights,(85) but by economic operators called upon to paythe levy established by a Member State to constitute fair compensation for the private copying exception which it has introduced.
The precise definition of the exceptions to and limitations on the right of reproduction given in Article 5 of Directive 2001/29,including the private copying exception, is, in any event, an attempt to specify the first condition of the three-step test, which concerns the limitation of their application to special cases.
It asks, in substance, whether the private copying exception provided for in Article 5(2)(b) of Directive 2001/29 applies to all reproductions, regardless of the lawfulness of their source(the first alternative), or whether, on the contrary, it may only apply to reproductions made from sources which are themselves lawful(the second alternative).
In particular, under Article 5(2)(b) of Directive 2001/29, Member States may provide for an exception to the author's exclusive reproduction right in his work in respect of reproductions on any medium made by a natural person for private useand for ends that are neither directly nor indirectly commercial(‘the private copying exception').
The private copying exception, which is certainly one of the‘cases' of exception to the exclusive right of reproduction provided for in Article 2 of Directive 2001/29, must therefore be formulated by the Member States and applied by national courts with account being taken of the implications which flow from the restriction of its scope of application to special cases.
It must be observed first of all that Article 5 of Directive2001/29 contains no express indication as to whether the private copying exception may apply to all reproductions irrespective of whether they are made from lawful sources or unlawful sources, or whether, on the contrary, the exception may apply only to reproductions made from lawful sources.
Secondly, it would indirectly legitimise the grave interference with the normal exploitation of protected works and other subject-matter, in complete disregard of the second condition laid down in the provision, and thus upset the fair balance which that provision establishes between the exclusive right of reproductionof rightholders and the beneficiaries of the private copying exception.
The importance of the questionis further heightened by the fact that the private copying exception is presented by certain of the parties to the main proceedings and by some legal theorists as a means of compensating the harm caused to rightholders by the unauthorised dissemination over the Internet of protected works and other subject-matter, at least in the absence of technological measures capable of effectively combating piracy.
Consequently, I propose that the Court should answer part(b) of the second question asked by the national court by holding that,with regard to the private copying exception which the Member States are authorised to provide for pursuant to Article 5 of Directive 2001/29, a Member State may not charge the levy which must accompany that exception in respect of reproductions or works and other subject-matter protected by copyright or related rights that are made from unlawful sources.
(2) Article 5 of Directive 2001/29 is to be interpreted as meaning that,with regard to the private copying exception which the Member States are authorised to provide for pursuant to that provision, a Member State may not charge the levy which must accompany that exception in respect of reproductions or works and other subject-matter protected by copyright or related rights that are made from unlawful sources.