The InfoSoc Directive regulates an optional private copying exception, which must be accompanied by the condition that fair compensation must be guaranteed to rightholders. The need for the private copying exception does not raise any doubts as far as concerns copyright. However, the question of remuneration or compensation for the harm to rightholders that results from it is currently giving rise to vigorous debate in several EU Member States. This chapter analyzes recent European case-law on this subject matter. Keywords: Private copying exception, fair compensation, InfoSoc Directive, Court of Justice of the European Union, Padawan, EGEDA.
C-466/12 Nils Svensson and Others v Retriever Sverige AB (13 February 2014)
On February 13, 2014, the Court of Justice of the European Union handed down its long-awaited judgment in C-466/12 Svensson and Others v Retriever Sveriege. The Court of Justice found that hyperlinks to open websites were not a communication to a new public. It also concluded that the Information Society Directive (2001/21) provides a complete harmonization of the communication to the public right.
Gemma Minero Alejandre
This review analyses the recent Spanish Supreme Court decision Megakini v Google. The long-awaited ruling tries to balance the interests of copyright owners and Internet operators in the digital era. However, in doing so both the Supreme Court and the Barcelona Provincial Court follow the fair use doctrine, and complement it with some good faith considerations – the so-called ius usus inoqui principle. Thus, although the result tries to stress the importance of analysing the flexibility of fair use in light of new circumstances, the Spanish courts have created a new exception and have done so by applying foreign law (§107 of the US Copyright Act). The Spanish legislator is currently discussing the Copyright Act reform. It remains to be seen whether the Spanish legislator will take the Supreme Court's ruling into consideration.