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.
It is almost impossible to effectively monitor private reproduction and to make a statistical survey of the precise quantity of private copying. Therefore it must be presumed that as a general rule the rightholder is not in a position to find out whether and to what extent private reproduction has been carried out. Thus, a direct charge to the user must be excluded for reasons of practicality. The lump-sum remuneration of the rightholder, which is linked to the presumed use of devices and storage media, overcomes these practical difficulties in an objective way: the manufacturer, importer or dealer of a device or storage medium, which is in fact typically used for reproductions, directly pays a lump sum, which is demanded as remuneration for private copying for the benefit of all rightholders. Admittedly, the actual user is not subject to the payment obligation. However, it must be assumed that the lump sum is passed on to the purchaser of a device or storage medium, and ultimately to the user, via the purchase price. Consequently, the remuneration is in effect linked to the typical actual use of the device or storage media for private copying.
Gearing the legislative approach to the objective suitability of a device for private copying is based to a certain extent on a statutory presumption that in all probability the buyer will make use of this possibility. Thus a sufficiently close link exists provided that that presumption is not rebutted by specific evidence to the contrary. That statutory presumption takes into account the connection required by Article 5(2)(b) of Directive 2001/29 between the use of the right, on the one hand, and fair compensation, on the other hand. Consequently, a method which calculates the rightholder’s remuneration as a lump sum should be regarded as being in principle compatible with Community law.