The legislative reform of copyright law in Ukraine involves approximation to EU copyright law, which certainly raises many questions regarding the legal nature of transposed notions for their successful practical implementation. For the successful implementation of EU concepts it is necessary to determine which concepts are harmonized in the EU and which are left to the discretion of national law. For this purpose, an analysis of the CJEU practice on private copying elements is necessary.
Therefore, this research considers the concept of private copying in accordance with EU law, as well as identify the elements that are harmonized and subject to a common understanding. According to the analysis conducted on the CJEU decisions, harmonized elements of the private copying limitation include fair compensation as an autonomous concept, types of reproduction, and criteria for determining tariffs. Germany's national jurisprudence on private copying limitation is also considered for future developments in this area.
The Ukrainian legislator is not obliged to take the practice of the CJEU directly into consideration. Nevertheless, it cannot do without it, otherwise it runs the risk of obtaining a literal copy of the directives' provisions with a low quality of legal norms, and thus with ineffectiveness.
In the case of private copying under Ukrainian law, the main misunderstanding of legal nature of the private copying in the EU vests in tariff setting and determination of amount of compensation. As a result the Ukrainian implementation of Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society (Infosoc Directive) and Directive 2014/26/EU on collective management of copyright and related rights and multi-territorial licensing of rights in musical works for online use in the internal market (Collective Rights Management Directive) did not take into account a number of national characteristics of the previous procedure of accounting compensation for private copying. The absence of explicit criteria for accounting fair compensation caused the opposition of importers and producers. Ukrainian users and collecting societies should find a compromise on the criteria for calculating the fair compensation taking into account the case law of the CJEU and German copyright law. A number of criteria for accounting fair compensation for private copying could be considered including the lawful or unlawful source of the download, the protection of the work with technical protection measures, the economically appropriate relationship with the price level of the medium or device, and the unambiguous exclusion of professional equipment.
