Amazon v Austro-Mechana, part II

by Axel P Ringelhann

On 18 November 2014 the Oberster Gerichtshof (Supreme Court, Austria) stayed its proceedings in the above-mentioned case in order to ask the CJEU for a preliminary ruling. The referring court wishes to know: whether the right to “fair compensation” according to Article 5(2)(b) of Directive 2001/29, which in Austrian law is against persons who, acting on a commercial basis and for remuneration, are first to place on the domestic market recording media is a “matter relating to tort, delict or quasi-delict”, according to Article 5(3) of Council Regulation (EC) No 44/2001.

This is the second request for a preliminary ruling in the Amazon v Austro-Mechana proceedings. Previously, the same referring court requested a preliminary ruling as regards Article 5(2)(b) of Directive 2001/29/EC concerning a demand by the Austrian copyright collecting society Austro-Mechana for payment of the remuneration due as a result of the placing on the market of recording media under the Austrian legislation (C‑521/11). The CJEU handed down its judgment on 11 July 2013, which evidently supports Austro-Mechana’s standpoint.

The present request for a preliminary ruling addresses the issue of jurisdiction. Austro-Mechana advocates that according to the CJEU the “fair compensation” serves to compensate the “damage” suffered by the holders of the exclusive right of reproduction. Accordingly, Austro-Mechana claims damages and argues that the jurisdiction would be covered by Article 5(3) of Council Regulation (EC) No 44/2001. Amazon, on the other hand, objects that the provision only applies to claims originating from a delict or quasi-delict. Conversely, the “fair compensation” is based on a permitted action, which serves to establish a fair compensation for reproductions intended for private use. For these reproductions the right owner’s prior consent is not required. Thus these actions are allowed, they do not constitute a delict or quasi-delict. According to Amazon the Oberste Gerichtshof itself followed this line of reasoning in a previous judgement in the year 2006.

Axel Ringelhann
Assistant Editor