No claim for damages

Case no. BS-21863/2022-HJR
Judgment delivered on 16 November 2023

Copydan KulturPlus
vs.
Ministry of Culture

The blank media scheme compensates holders of rights to, e.g., music and films, for private individuals’ right under the Danish Copyright Act to make single digital copies for private use (private copying). Up to 1 January 2022, the scheme consisted of a remuneration (a form of levy) for so-called separate storage media such as blank CDs, DVDs and digital memory cards as well as an indexed appropriation in the Danish Finance Act (the so-called DVD guarantee). The scheme is managed and the compensation is disbursed by Copydan KulturPlus (Copydan) on behalf of and to the rights holders.

The first issue was whether the compensation scheme applicable in 2014-2021 complied with the EU Infosoc Directive, and, if not, whether there was a sufficiently serious breach of the Directive to render the Danish Ministry of Culture liable in damages. If that was the case, the second question was whether Copydan had suffered a loss. According to the limitation rules, the claim for damages was limited to the period from 1 August 2014 to 31 December 2021, after which a new compensation scheme became operational.

Referring, to the EU Court of Justice’s Judgment of 21 October 2010 in Case C-467/08 (Padawan) and Judgment of 16 June 2011 in Case C-462/09 (Stichting de Thuiskopie), the Supreme Court held that the previous blank media scheme was in breach of the Infosoc Directive. The Supreme Court stated that the Danish authorities had committed a sufficiently serious breach of EU law during the entire period from 2014 to 2021, and that it could therefore be held liable for not having changed the compensation scheme.

The Supreme Court went on to state that Copydan could only be regarded as having suffered actionable damage if it could be demonstrated that the rights holders would have received a higher amount of compensation had the Danish authorities implemented the Infosoc Directive correctly. In the assessment of the damage, the remuneration received by Copydan under the DVD guarantee was not to be excluded, as this remuneration was also part of the compensation granted for the right to private copying.

The Supreme Court concluded that Copydan had failed to demonstrate that it had suffered a loss in the period from 2014 to 2021, and that it did thus not have a claim for damages.

The High Court had reached a different conclusion.