Provisional text

OPINION OF ADVOCATE GENERAL

SZPUNAR

delivered on 16 July 2026 ( 1 )

Case C ‑ 441/25

AGECOP – Associação para a Gestão da Cópia Privada

v

VISAPRESS – Gestão de Conteúdos dos Media, CRL

(Request for a preliminary ruling from the Supremo Tribunal de Justiça (Supreme Court, Portugal))

( Reference for a preliminary ruling – Intellectual property – Directive 2001/29 – Copyright in the information society – Article 5(2)(a) and (b) – Fair compensation for reproduction for private use – Directive 2019/790 – Copyright in the Digital Single Market – Article 16 – Publishers’ claims to fair compensation – National legislation allocating a portion of the fair compensation due to authors to publishers who are holders of the initial copyright in collective works and of derivative copyright in press articles published without the author being identified )

Introduction

1. EU copyright law provides for the payment of fair compensation to holders of copyright for the reproduction of their works within the scope of existing exceptions to the copyright monopoly. Under the provisions of that law, the beneficiaries of that compensation may also include publishers of literary and graphic works.

2. However, it does not appear entirely clear whether they are entitled to receive that compensation in their capacity as publishers or as holders of copyright which they acquire by operation of law or by contract.

3. That issue is the subject of the request for a preliminary ruling in the present case.

Legal context

European Union law

4. Article 5(2)(a) and (b) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society ( 2 ) provides:

‘Member States may provide for exceptions or limitations to the reproduction right provided for in Article 2 in the following cases:

(a) in respect of reproductions on paper or any similar medium, effected by the use of any kind of photographic technique or by some other process having similar effects, with the exception of sheet music, provided that the rightholders receive fair compensation;

(b) in respect of reproductions on any medium made by a natural person for private use and for ends that are neither directly nor indirectly commercial, on condition that the rightholders receive fair compensation …’

5. Pursuant to the first paragraph of Article 16 of Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC: ( 3 )

‘Member States may provide that where an author has transferred or licensed a right to a publisher, such a transfer or licence constitutes a sufficient legal basis for the publisher to be entitled to a share of the compensation for the use of the work made under an exception or limitation to the transferred or licensed right’.

Portuguese law

6. Fair compensation for the reproduction and fixation of works was introduced under Article 82(1) of the Código do Direito de Autor e dos Direitos Conexos (Code on Copyright and Related Rights) (approved by means of Decreto-Lei (Decree-Law) No 63/85 of 14 March 1985, in the version in force on the date on which the facts in the main proceedings occurred). That provision lists publishers among the beneficiaries of that compensation.

7. The detailed provisions concerning that compensation are contained in Lei da Cópia Privada (Law on Private Copying) No 62/98 of 1 September 1998, in the version in force on the date on which the facts in the main proceedings occurred. Pursuant to Article 6(1) of that Law, the collection, management and distribution of fair compensation are to be ensured by the Associação para a Gestão da Cópia Privada (‘AGECOP’), a non-profit legal entity under Portuguese law, which is, in essence, a federation of organisations for the collective management of copyright and related rights that represents, in particular, authors and publishers.

8. Pursuant to Article 7(2) of the Law on Private Copying, the amounts collected for the financing of fair compensation for the reproduction for private use of literary and graphic works are to be divided equally between bodies representing authors and those representing publishers.

Facts, conduct of the proceedings, and the question referred for a preliminary ruling

9. On 26 June 2020, the management board of AGECOP adopted a resolution according to which fair compensation for the reproduction for private use of literary and graphic works for the period from March to May of that year would be paid, in the part allocated under national law to authors, to the organisation representing authors, and, in the part allocated to publishers, to the organisations representing publishers.

10. On 27 July 2020, VISAPRESS – Gestão de Conteúdos dos Media, CRL, an organisation representing press publishers (‘VISAPRESS’), brought a court action against that decision. That organisation argues, in essence, that press publishers are not only holders of related rights in press publications but also holders of copyright in some of those publications, and should therefore receive a share of the part of fair compensation allocated to authors. The court proceedings indicated here do not appear to be part of the main proceedings.

11. On 3 December 2020, the management board of AGECOP adopted a resolution in regard to fair compensation for the period from June to November of that year, which was similar in content to the resolution of 26 June 2020.

12. On 21 June 2023, the resolution of 3 December 2020 was challenged by VISAPRESS before the court of first instance, which, however, dismissed the action by a judgment of 21 March 2024. That judgment was subsequently set aside by the Tribunal da Relação de Lisboa (Court of Appeal, Lisbon, Portugal) by a judgment of 16 October 2024. The Court of Appeal held, in particular, that VISAPRESS could be regarded as a body representing authors within the meaning of Article 82 of the Code on Copyright and Related Rights and the provisions of the Law on Private Copying, and therefore as a body entitled to receive a share of the part of fair compensation allocated to authors.

13. The latter judgment has been challenged by AGECOP before the referring court by way of an appeal on a point of law. In those circumstances, the Supremo Tribunal de Justiça (Supreme Court, Portugal) has decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

‘In view of the fact that:

(a) Portuguese law provides that the fair compensation owed for reproduction for private use, in accordance with Article 5(2)(a) and (b) of [Directive 2001/29] and Article 16 of [Directive 2019/790], is to be divided in equal parts between bodies representing authors and bodies representing publishers; and that,

(b) according to Portuguese law, publishers of press publications, in addition to being holders of a right related to copyright, are also direct owners of copyright in respect of the newspapers and other publications which they publish, as well as indirect owners of copyright in respect of articles published without the author being identified and, inter alia, resulting from the transfer of that right by the intellectual creators,

may the abovementioned directives be interpreted as meaning that they allow the Portuguese law applicable to the case to be interpreted in such a way that a collective management organisation representing publishers of newspapers and other periodical publications, in addition to receiving a share (50%) of the fair compensation for reproduction owed for private use allocated to publishers, is entitled to share the remaining 50% of that same fair compensation, which, in accordance with the law, is owed to authors, with another collective management organisation representing the intellectual creators of the works included in those periodical publications, which necessarily implies a reduction in the compensation received by those creators?’

14. The request for a preliminary ruling was received at the Court on 4 July 2025. Written observations were submitted by the parties in the main proceedings, the Portuguese and Estonian Governments, and the European Commission. The Court has decided to rule on the case without holding a hearing.

Analysis

15. The analysis of the question referred for a preliminary ruling in the present case requires several preliminary remarks concerning the subject matter of that question.

Subject matter of the question referred

16. As can be seen from the order for reference, the dispute in the main proceedings is between two organisations for the collective management of copyright and related rights and concerns the extent to which those organisations are entitled to receive and subsequently distribute among their members funds intended for the payment of fair compensation for the reproduction of works. The subject matter of the dispute in the main proceedings is also reflected in the manner in which the referring court has formulated the question referred for a preliminary ruling.

17. However, it should be borne in mind that EU law addresses only the issue of determining the group of entities that are entitled to receive fair compensation. By contrast, the collection and management of funds intended for the payment of that compensation, as well as the question of the representation of the entities entitled to receive it by collective management organisations, remains entirely within the competence of the Member States, provided, of course, that national legislation in this area complies with EU law.

18. In view of the foregoing, it must be held that the referring court, by submitting the question referred in the present case, seeks in essence to determine whether Article 5(2)(a) and (b) of Directive 2001/29, read in conjunction with the first paragraph of Article 16 of Directive 2019/790, is to be interpreted as precluding legislation of a Member State under which press publishers are entitled to receive fair compensation for the reproduction of their publications as holders of copyright in those publications, notwithstanding the fact that they are also entitled to receive that compensation in their capacity as publishers of those publications.

19. It is worth beginning the analysis of the question referred with a brief review of the relevant case-law of the Court and the background to Article 16 of Directive 2019/790.

The Court’s case-law to date and the background to Article 16 of Directive 2019/790

20. Although the wording of Article 5(2)(a) and (b) of Directive 2001/29 concerning fair compensation is very concise, the Court has developed a substantial body of case-law on that basis, including with regard to the group of entities entitled to receive such compensation.

21. Already in its first judgment concerning fair compensation, the Court established that the purpose of such compensation is to make good the harm suffered by rightholders in connection with the reproduction of works and other protected subject matter under the exception provided for in the aforementioned provisions, and that the amount of that compensation must be calculated on the basis of the extent of that harm. ( 4 )

22. Subsequently, the Court held that fair compensation does not have to be paid directly to rightholders in its entirety, but that those rightholders may benefit from it indirectly. By contrast, third parties should not be beneficiaries of that compensation. ( 5 )

23. Lastly, in its judgment of 12 November 2015, Hewlett-Packard Belgium (C‑572/13, ‘the judgment in Hewlett-Packard ’, EU:C:2015:750, paragraphs 46 to 49), the Court held in essence that publishers of works reproduced under the exception provided for in Article 5(2)(a) and (b) of Directive 2001/29 are not entitled to receive a share of the fair compensation allocated to authors for such reproduction. The Court relied primarily on the wording of Article 5(2)(a) and (b) of Directive 2001/29, according to which fair compensation is due to ‘rightholders’, whereas Article 2 of that directive, which establishes the reproduction right, does not list publishers among the holders of that right.

24. The judgment in Hewlett-Packard was not well received in the Member States, many of which ( 6 ) provide in their legislation for publishers to receive a share of the fair compensation for exceptions to the reproduction right. ( 7 ) To enable the Member States to maintain that legislation, the EU legislature adopted Article 16 of Directive 2019/790. The connection between that provision and the judgment in Hewlett-Packard is clearly indicated in recital 60 of that directive, according to which the provision in question was adopted in particular for the benefit of Member States that allowed publishers to share in fair compensation ‘before 12 November 2015’, that is to say, before the date of delivery of that judgment.

25. It is against that background that the dispute in the main proceedings has arisen. The resolution of that dispute requires an interpretation of Article 5(2)(a) and (b) of Directive 2001/29, read in conjunction with Article 16 of Directive 2019/790.

Interpretation of Article 5 (2)(a) and (b) of Directive 2001/29

26. AGECOP infers from the wording of Article 5(2)(a) and (b) of Directive 2001/29 that the term ‘rightholders’ used in those provisions encompasses only the entities listed in Article 2 of that directive, which do not include publishers. Therefore, according to AGECOP, publishers may, where appropriate, receive fair compensation solely on the basis of Article 16 of Directive 2019/790, irrespective of whether they are merely licensees authorised to use the works or have acquired, by operation of law or by contract, the exclusive right to reproduce them. Under national law, AGECOP argues on that basis that publishers are not entitled to a share of the part of fair compensation allocated to authors.

27. I do not believe, however, that such a restrictive interpretation of the provisions in question is correct.

28. As the title of Directive 2001/29 indicates, the sole purpose of that directive is to harmonise certain provisions concerning copyright and related rights. Article 2 of the directive harmonises the reproduction right by defining the subject matter protected by that right and the entities to whom, in principle, the right belongs, while Article 5 thereof establishes exceptions to that right.

29. However, neither Directive 2001/29 nor any other instrument of EU law regulates the transfer of exclusive copyright and related rights or the determination of the groups of holders of those rights in unusual situations, such as the creation of a work in the context of an employment relationship or in collaboration with multiple creators. It cannot therefore be considered that the group of holders of the reproduction right is strictly limited to the entities expressly listed in Article 2 of that directive, as in such a case any transactions involving exclusive rights or flexible regulation of unusual situations would be impossible. In addition, it must be borne in mind that copyright and certain related rights survive the death of the entities listed in Article 2 of Directive 2001/29 and are subject to inheritance, as a result of which heirs acquire the rights of those entities.

30. As regards Article 5(2)(a) and (b) of Directive 2001/29, those provisions, in designating the group of entities entitled to receive fair compensation, do not list the entities referred to in Article 2 of that directive; nor do they contain any reference to that provision, but instead use the general term ‘rightholders’. ( 8 ) There is therefore no reason to believe that that term encompasses only the entities listed in Article 2 of Directive 2001/29. On the contrary, it must be interpreted in light of the realities of how copyright law functions in the Member States, which means that it encompasses not only the entities expressly listed in Article 2 of Directive 2001/29, but also the successors in title of those entities, as well as persons who, while not being the actual authors of the works, are the holders of copyright under national legislation compliant with EU law.

31. Such persons may include, for instance, publishers, where (and to the extent that) authors have transferred to them the exclusive right to reproduce the work, or where national law grants them the status of holders of that right.

32. No other conclusion can be drawn from the judgment in Hewlett-Packard . In the case which gave rise to that judgment, the question of the potential status of publishers as holders of the reproduction right was not examined in depth. Under the national legislation applicable in the main proceedings in that case, publishers received fair compensation in their capacity as such, and it was in that context that the Court noted that they are not listed in Article 2 of Directive 2001/29 as a distinct category of holders of that right. In addition, because fair compensation is intended to make good the harm resulting from the introduction of the exception to the exclusive reproduction right, the Court held that publishers are not entitled to such compensation, as they do not suffer any harm on account of that exception. However, at no point in that judgment did the Court state that the concept of ‘rightholders’ contained in Article 5(2)(a) and (b) of Directive 2001/29 is limited to the categories of entities listed in Article 2 of that directive.

33. The interpretation of Article 5(2)(a) and (b) of Directive 2001/29 proposed in point 30 above is also consistent with the ratio legis behind fair compensation. As I have already stated, the Court held that that compensation is intended to make good the harm suffered by holders of the reproduction right by reason of the exception concerning reproduction for private use. ( 9 ) That harm arises from the fact that users may reproduce the work for private use without the consent of the holder of the reproduction right, for which consent that holder could otherwise have charged a fee, for instance by selling an additional copy of the work.

34. It is therefore logical that the entity entitled to receive fair compensation in each case should be the one that would have been entitled to authorise or prohibit reproduction in the absence of the exception provided for in Article 5(2)(a) or (b) of Directive 2001/29. That entity may be a person to whom the reproduction right has been transferred by contract or who holds that right under national legislation, even if that person is not the actual author of the work. Such a person may, in particular, be a publisher. Of course, private-law relationships or statutory regulations may be more complex, and more than one person may hold the rights to a specific work. The method for calculating and paying fair compensation should take that complex reality into account.

35. It is true that Article 16 of Directive 2019/790 introduces a certain degree of ambiguity here, as under that provision, Member States may authorise publishers to share in fair compensation irrespective of whether the right has been transferred to them or they have merely obtained a licence to exploit the work. It is therefore possible to conclude that this is the only possible basis for publishers to receive fair compensation, and that their potential status as holders of the reproduction right within the meaning of Article 5(2)(a) and (b) of Directive 2001/29 is irrelevant.

36. In my view, however, such an understanding of Article 16 of Directive 2019/790 is incorrect. Unlike Directive 2001/29, neither Article 16 of Directive 2019/790 nor recital 60 thereof, which refers to that article, uses the term ‘rightholders’; rather, they distinguish merely between authors, on the one hand, and publishers, on the other. The aim of the EU legislature here was to solve a practical problem rather than to resolve legal issues. An examination of recital 60 of Directive 2019/790 indicates that the legislature intended, by means of Article 16 of that directive, to grant Member States the broadest possible discretion as regards allowing publishers to share in fair compensation irrespective of the form in which the right to use the works was granted to them by the authors. That provision was therefore formulated in such a way as to cover all possible situations and all mechanisms existing under the national laws of the Member States.

37. However, it does not alter the wording of Article 5(2)(a) and (b) of Directive 2001/29, which, unlike Article 2 of that directive, does not use the term ‘author’, but instead uses the term ‘rightholders’. Thus, there is no reason to conclude that the scope of that term has been restricted merely because Article 16 of Directive 2019/790 potentially encompasses situations in which publishers may be regarded as copyright holders. At most, in such situations, Article 16 of Directive 2019/790 will be of a purely declaratory nature.

38. On the other hand, I do not agree with the argument raised by AGECOP that an interpretation of Article 5(2)(a) and (b) of Directive 2001/29 such as the one I have proposed here renders Article 16 of Directive 2019/790 meaningless, as the latter provision also encompasses situations in which publishers are not the holders of the reproduction right, but merely licensees of the right to exploit the works. ( 10 ) In those circumstances, it retains its full normative force.

39. Furthermore, it should be noted that Article 16 of Directive 2019/790 encompasses only situations in which publishers have acquired rights from authors. If, therefore, it were to be held that the group of entities entitled to fair compensation under Article 5(2)(a) and (b) of Directive 2001/29 is limited to those listed in Article 2 of that directive, publishers who have acquired the reproduction right independently, for instance by operation of law, would be deprived of the right to fair compensation, which would, in my view, be contrary to the purpose of Article 5(2)(a) and (b) of Directive 2001/29, as well as Article 16 of Directive 2019/790. It should therefore rather be assumed that the EU legislature chose not to regulate such situations under the latter provision, because it considered them to be covered by the former.

40. In my view, therefore, Article 5(2)(a) and (b) of Directive 2001/29 must be interpreted as meaning that publishers who are holders of the exclusive reproduction right are entitled to fair compensation under those provisions.

41. On the other hand, in light of Article 16 of Directive 2019/790, the purpose and role of such fair compensation must also be taken into account.

The purpose and role of fair compensation for publishers

42. As I have already stated, in accordance with the judgment in Padawan (paragraphs 39 to 42), that compensation is intended to make good the harm resulting from the use of works under the exceptions provided for in Article 5(2)(a) and (b) of Directive 2001/29, and its amount must be calculated on the basis of the extent of that harm. That judgment, of course, concerned fair compensation for rightholders. However, I see no reason why it should not apply also to publishers who receive that compensation under Article 16 of Directive 2019/790, because, as can be seen from that provision, it concerns the publishers’ share in the compensation paid in accordance with those provisions of Directive 2001/29.

43. The Court has also emphasised the link between fair compensation and the harm suffered by holders of the reproduction right in other judgments. In particular, in the judgment in Hewlett-Packard , the Court questioned the compensation for harm caused by reproduction from unlawful sources, as such reproduction is not covered by the exceptions provided for in Article 5(2)(a) and (b) of Directive 2001/29, and also questioned a system for calculating compensation that does not allow for the deduction of the actual harm from the harm calculated on a lump-sum basis. ( 11 ) Furthermore, the Court questioned the collection of funds intended to finance fair compensation from reproduction devices not intended for private use, as such devices are not used for reproduction for private use, as required by Article 5(2)(b) of that directive. ( 12 )

44. That criterion must therefore be taken into account in the event of a potential overlap between the entitlement of publishers to receive fair compensation as holders of the reproduction right and their entitlement as publishers. In that regard, I do not share the view expressed by VISAPRESS, according to which publishers who are holders of that exclusive right suffer double harm: first, because they are unable to sell more copies of the work, and second, because of the operation of the exception to the reproduction right.

45. The harm that fair compensation serves to make good results from the existence of that exception and consists precisely in the reduction of income from the sale of copies of works (or from making them available in intangible form). The reproduction right is an economic right, and the only harm that may result from its restriction consists in the reduced capacity to derive income from the commercial exploitation of works.

46. Of course, in a situation where it is impossible to determine precisely which work has been reproduced by users for their private use, and how many times, or what those users’ propensity to purchase additional copies of the work would be, fair compensation reflects only a rough approximation of the harm actually suffered by the holders of the reproduction right. Nevertheless, a doubt arises – which must be resolved by the national legislature or the national authorities applying the law – as to whether, for instance, potential double compensation for a publisher in respect of the same work, in a situation where the publisher is also the holder of the reproduction right in that work, is consistent with the requirement that the amount of fair compensation should be determined on the basis of the extent of the harm suffered by the rightholder.

47. Therefore, in a situation where publishers are entitled to receive fair compensation both as holders of the reproduction right in works and as publishers of those works, the total amount of that compensation should reflect the extent of the harm actually suffered by them on account of reproduction for private use.

48. Ultimately, I am therefore of the view that Article 5(2)(a) and (b) of Directive 2001/29, read in conjunction with the first paragraph of Article 16 of Directive 2019/790, does not preclude press publishers from being entitled to receive fair compensation for the reproduction of their publications as holders of copyright in those publications, notwithstanding the fact that they are also entitled to receive that compensation in their capacity as publishers of those publications, subject to the reservation set forth in point 47 of this Opinion.

Final remarks

49. I believe two points need to be made in closing.

50. First, as I have already stated at the outset with regard to the wording of the question referred for a preliminary ruling, while EU law defines the group of beneficiaries of fair compensation, it does not regulate the question of the representation of those beneficiaries by collective management organisations or the mechanisms for the distribution of that compensation by those organisations, leaving this to be regulated by the national law of the Member States. Consequently, the question whether publishers, as holders of the reproduction right in works, should receive fair compensation on that account from the pool of funds managed by an organisation representing authors or an organisation representing publishers falls entirely within the purview of national law, in this case Portuguese law. The same applies to the proportion in which publishers share in the allocation of that fair compensation.

51. Second, the question referred for a preliminary ruling in the present case does not in any way concern the assessment of the compatibility with EU law of the Portuguese provisions granting press publishers the status of copyright holders in certain publications. Nor does it appear that that issue is the subject of the dispute before the national court or the subject of discussion between the parties to that dispute. For this reason, I do not address that issue in this Opinion; nor do I believe that the Court should address it in its ruling on the present case; moreover, the Court is not, in my view, sufficiently informed to rule on the matter.

52. I would merely add that the recent judgment in ONB and Others ( 13 ) concerned a specific situation where performers were retroactively deprived of their related rights on the basis of provisions issued after they had acquired those rights or contrary to their legitimate expectation of acquiring them. The conclusions resulting from that judgment are therefore not directly and automatically applicable to a situation such as the one at issue in the present case.

Conclusions

53. In light of all the above considerations, I propose that the following answer be given to the question referred for a preliminary ruling by the Supremo Tribunal de Justiça (Supreme Court, Portugal):

Article 5(2)(a) and (b) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, read in conjunction with the first paragraph of Article 16 of Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC,

must be interpreted as not precluding legislation of a Member State under which press publishers are entitled to receive fair compensation for the reproduction of their publications as holders of copyright in those publications, notwithstanding the fact that they are also entitled to receive that compensation in their capacity as publishers of those publications; where publishers are entitled to receive fair compensation both as holders of the reproduction right in works and as publishers of those works, the total amount of that compensation should reflect the extent of the harm actually suffered by them on account of reproduction for private use.

1 Original language: Polish.

2 OJ 2001 L 167, p. 10.

3 OJ 2019 L 130, p. 92.

4 Judgment of 21 October 2010, Padawan (C‑467/08, ‘the judgment in Padawan ’, EU:C:2010:620, paragraphs 39 to 42).

5 Judgment of 11 July 2013, Amazon.com International Sales and Others (C‑521/11, EU:C:2013:515, paragraphs 49 to 50 and 53 to 54).

6 18, according to the information provided by the Commission in its observations in the present case.

7 Furthermore, that share may be relatively high, as indicated by the Portuguese legislation applicable in the main proceedings, under which fair compensation is to be divided equally between authors and publishers. The same division also applied in the case which gave rise to the judgment in Hewlett-Packard (see the Belgian legislation cited in paragraph 9 of that judgment).

8 ‘podmioty praw’ in Polish, ‘titulaires de droits’ in French, and ‘Rechtinhaber’ in German.

9 The judgment in Padawan (paragraph 40).

10 See Article 4 of Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights (OJ 2004 L 157, p. 45), which clearly differentiates these two categories.

11 See, respectively, points 3 and 4 of the operative part of that judgment.

12 The judgment in Padawan (point 3 of the operative part).

13 Judgment of 6 March 2025, C‑575/23, EU:C:2025:141.