The Court of Justice of the European Union (CJEU) has determined that a private copying exemption in national law can apply only to a copy derived from a lawful source.

Article 5(2)b of the EU Copyright Directive entitles members states to provide an exemption from infringement for private copying, but only so long as the copyright owner receives fair compensation. Typically, fair compensation for private copying is provided through a levy on copying media, devices and/or services.

On a referral from the Netherlands Supreme Court, the CJEU ruled that the Copyright Directive precludes national legislation “which does not distinguish the situation in which the source from which a reproduction for private use is made is lawful from that in which that source is unlawful”.

It follows that, when determining the amount of the private copying levy payable, only copying from lawful sources can be taken into account.