Link between the compensation and the presumed use for private copying (de)
An exception or limitation under Article 5(2)(b) of Directive 2001/29 may be regarded as a form of interference with the exclusive reproduction right of the rightholder which is permitted by Community law, although in such a case that provision of the directive mandatorily requires compensation for the author. Where a Member State transposes that provision into its national legal system, the making of a private copy by a natural person must be regarded as the specific act of interference which, subject to further criteria to be laid down by statute, triggers the rightholder’s entitlement to financial compensation. In that respect, there is certainly a linkage between the making of a private copy and the payment which is owed. That applies regardless of how the respective Member State’s system of collection for compensation for private copying is organised in detail and whether it is financed, for instance, by means of a levy. On the other hand, the requirements in relation to that link should not be raised so high that ultimately the actual use of the relevant devices for the purposes of private copying would have to be required. Rather, even potential use would have to be regarded as sufficient.
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