Current Challenges in the Relationship Between Slovenian Copyright Law and EU Law

Abstract

The article examines how recent developments in EU copyright law affect Slovenian legislation. The Slovenian system of collective management of copyright and related rights is currently under scrutiny by the European Commission, which has initiated infringement proceedings for failure to correctly apply the InfoSoc Directive and the Collective Rights Management Directive. The forthcoming Streamz decision of the Court of Justice of the European Union, initiated by the Belgian Constitutional Court, may further influence Slovenian copyright rules, given that both Slovenia and Belgium have implemented the Digital Single Market Directive by similar means. A pressing issue in Slovenian copyright law—recently addressed by the Higher Court of Ljubljana—concerns the collection, management, and distribution of the private copying levy as a permissible limitation to exclusive authors’ rights under the InfoSoc Directive. A thorough analysis of these issues reveals a complex interplay between EU and national law regarding the collective management of exclusive authors’ rights and various remuneration rights. Adopting a legal-dogmatic approach and applying textual, purposive, systematic and comparative legal methods, the article provides an overview of Slovenia’s copyright protection system, identifies potential incompatibilities with EU law, and proposes legislative solutions.

1. Introduction

In the field of collective management of copyright and related rights in the Republic of Slovenia, we face numerous challenges in collecting, managing, and distributing copyright royalties and equitable remuneration. The European Commission recently identified some of these challenges and decided to open infringement proceedings for failing to correctly apply the Directive 2001/29/EC on the harmonization of certain aspects of copyright and related rights in the information society (InfoSoc Directive; European Parliament and Council 2001) and the 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 (CRM Directive; European Parliament and Council 2014). The European Commission’s main criticism of Slovenian legislation is that it does not allow authors to decide for themselves how to manage their exclusive rights to communicate their works to the public (European Commission 2026).

The latest amendment to the Copyright and Related Rights Act (CRRA-I; National Assembly 2022) has significantly reshaped relationships among key stakeholders in the creation of audiovisual works, i.e., co-authors, performers, and film producers. Slovenia has followed recent trends in comparative law, which, with the introduction of unwaivable and non-transferable remuneration rights, are intended to ensure the fair participation of creators in income from the secondary exploitation of audiovisual works. This strengthens the position of collective management organizations (CMOs) in the European Union (EU), as national laws typically stipulate mandatory collective management for such rights. The relevant provisions of the CRRA-I (National Assembly 2022) transposed Article 18 of the Directive (EU) 2019/790 on copyright and related rights in the Digital Single Market (DSM Directive; European Parliament and Council 2019a). The Directive obligates Member States to ensure that authors and performers, when transferring their exclusive rights, receive appropriate and proportionate remuneration. However, the Belgian Constitutional Court (2024) referred the question to the Court of Justice of the European Union (CJEU) for a preliminary ruling on whether such a mandatory, unwaivable, and non-transferable right to remuneration is compatible with EU law. The judgment of the CJEU could therefore also affect Slovenian legislation.

The ability of individuals to legally make a private copy of a work otherwise protected by copyright (“private copying”) is a central feature of many copyright laws worldwide (Stierle 2024). Because this limitation on reproduction rights reduces the need to purchase copyright-protected works, authors are entitled to equitable remuneration to mitigate their loss and achieve a fair balance among all parties involved (Trampuž 2023). Fair compensation, which is unwaivable, must be structured to reflect a “fair balance” between rightsholders and users (Drobež 2025). Since the author’s exclusive right to authorize reproduction of the protected work is the general rule, limitations and exceptions to this right are permitted only if they comply with the three-step test, initially introduced as Article 9(2) of the Berne Convention for the Protection of Literary and Artistic Works (WIPO 1886; Geiger et al. 2013). The three-step test requires that the exception be clearly defined in law, that it does not affect the normal exploitation of the work, and that equitable remuneration is provided to rightsholders. EU copyright directives must be interpreted in a manner consistent with the minimum standards established by the convention (Ricketson and Ginsburg 2022). The CJEU has repeatedly confirmed that EU secondary law should, as far as possible, be construed in light of international agreements binding on the EU, including Berne-derived principles (Rosati 2021). The EU is permitted to harmonize further and, in certain respects, exceed Berne standards.

In the cases V Cpg 248/2023 (Higher Court of Ljubljana 2024a) and V Cpg 249/2023 (Higher Court of Ljubljana 2024b), the Slovenian CMO SAZOR GIZ sought payment of the reprography levy from manufacturers and importers of mobile phones. The cases raise questions about the relationship between the reprography exception and the private copying exception, and about whether Slovenia has correctly implemented Article 5 of the InfoSoc Directive (European Parliament and Council 2001).

The thorough analysis of these pressing issues reveals a complex interplay between EU and national law governing the collective management of exclusive authors’ rights and remuneration rights. The article offers an overview of Slovenia’s copyright protection system, highlights potential incompatibilities with EU law, and proposes legislative solutions. The paper’s findings show how Member States can design an effective copyright protection system that complies with EU law.

2. Methods

From a methodological perspective, the paper primarily adopts a doctrinal (legal-dogmatic) approach, grounded in the analysis and systematization of legal sources, including national legislation, EU law, and relevant case law on collective management, exclusive rights, and their exceptions and limitations. In interpreting legal provisions, it relies on established methods of legal interpretation: textual, purposive, and systematic, complemented by a comparative analysis of Slovenian law and selected approaches in other EU Member States. This comparative dimension helps to identify broader trends in the design of remuneration schemes for rightsholders. While the core of the analysis is doctrinal, the paper also includes a normative component, offering proposals de lege ferenda that consider the constraints and objectives of the EU copyright framework.

3. European Commission Proceeding Against Slovenia on Legal Trusteeship of Exclusive Rights

3.1. Key Features of the Slovenian System of Mandatory Collective Management

Article 9 of the Slovenian Collective Management of Copyright and Related Rights Act (CMCRRA; National Assembly 2016) severely restricts rightsholders’ management of numerous exclusive rights, including small rights (ger. “kleine Rechte”—the communication to the public of non-theatrical musical and written works), the cable or other radio broadcasting retransmission of copyrighted works (except for broadcasting organizations’ own broadcasts), and the public communication (including the right to make available to the public) of audiovisual works, videograms, and performances recorded on videograms, excluding film producers’ public presentation and broadcasting rights. Under Slovenian law, mandatory collective management means that rightsholders can manage their rights only through a CMO. Article 18 CMCRRA (National Assembly 2016) explicitly states that, in the case of mandatory collective management, the CMO may exercise the rights under the law without the authorization of the rightsholder (ger. “gesetzliche Treuhand”, legal mandate or legal trusteeship). Rightsholders become passive (extraordinary) members of the CMO, and the CMO becomes the compulsory trustee of their exclusive rights (Trampuž et al. 1997). Article 14 CMCRRA (National Assembly 2016) also establishes a legal monopoly in the case of mandatory collective management. In terms of generating income from their rights, rightsholders are entirely dependent on the effectiveness of the state’s one and only CMO authorized to manage their rights.

3.2. The Requirements of EU Law

Articles 2–4 of the InfoSoc Directive (European Parliament and Council 2001) regulate the exclusive rights of reproduction, communication to the public by wire or wireless means, including making works available to the public, and distribution. Among legal scholars, there is no consensus on whether mandatory collective management alters the nature of exclusive rights. von Lewinski (2004) points out that mandatory collective management restricts the author’s choice of management method but does not interfere with the right itself. By contrast, von Ungern-Sternberg (2020) emphasizes that mandatory collective management is an exception and limitation of exclusive rights, and that Article 5 of the InfoSoc Directive (European Parliament and Council 2001) provides an exhaustive list of exceptions and limitations. Therefore, mandatory collective management of exclusive rights is permissible only where EU law expressly provides for it, as in cable retransmission (European Parliament and Council 2001) and the retransmission of TV and radio programs (European Parliament and Council 2019b). This means that mandatory collective management of exclusive rights on the internet is not permissible (von Ungern-Sternberg 2020).

In Soulier, the CJEU (2016) emphasized that protection under the InfoSoc Directive (European Parliament and Council 2001) extends not only to the enjoyment of rights but also to their enforcement. Therefore, we believe that any mandatory transfer of rights to a CMO must be assessed in light of the InfoSoc Directive (European Parliament and Council 2001). Recital 12 of the CRM Directive (European Parliament and Council 2014) emphasizes that this Directive “does not interfere with arrangements concerning the management of rights in the Member States such as individual management, the extended effect of an agreement between a representative collective management organization and a user, i.e., extended collective licensing, mandatory collective management, legal presumptions of representation and transfer of rights to CMOs.” This recital lists classic forms of collective management that the Directive should not interfere with, but legal trusteeship is not among them.

Recital 19 of the CRM Directive (European Parliament and Council 2014) also states: “Where a Member State provides for mandatory collective management of rights in accordance with Union law and the international obligations of the Union and its Member States, the choice of rightsholders is limited to other CMOs.” From this, we conclude that under EU law, certain restrictions on the choice of rights management are permissible, but not all and not for all categories of rights. This conclusion is further supported by Recital 18 of the Directive (EU) 2019/789 on the exercise of copyright and related rights applicable to certain online transmissions of broadcasting organizations and retransmissions of television and radio programs (European Parliament and Council 2019b), which states that rightsholders should have the choice to transfer their rights either to a broadcasting organization or to a CMO, thereby allowing them to have a direct share in the remuneration paid by the operator of a retransmission service. Such a transfer of rights is not possible under the system of legal trusteeship, because the rights are transferred to the CMO by law.

Mandatory collective management of rights is compatible with fundamental rights and the relevant principles recognized in the Charter of Fundamental Rights (EU 2012b) only if its application is prescribed in a targeted manner and limited to specific cases. Mandatory collective management is therefore permissible only if the rightsholder retains the right to choose between CMOs and if the rights in question cannot be effectively managed through voluntary collective management or directly between rightsholders and users. Since Slovenian copyright legislation stipulates mandatory collective management for a very wide range of exclusive rights to public communication and prescribes legal trusteeship, we take the position that it is not in line with EU law.

3.3. The Reasons for the Action of the European Commission Against Slovenia

In Slovenian law, mandatory collective management of small rights has been in place since 1995 (National Assembly 1995). However, the adoption of the CRRA-I (National Assembly 2022) drew the European Commission’s attention because the law extended mandatory collective management to the public communication of audiovisual works, even on the internet. Since the CRRA (National Assembly 1995) presumes the transfer of all rights in an audiovisual work to its producer, it appears that, in certain cases, producers could effectively manage rights outside the mandatory collective management system. The law excludes mandatory collective management only in two cases where rights are transferred to the film producer, namely public presentation rights and broadcasting rights. It appears that Slovenian legislation overly restricts rights holders’ choice of rights management, so we can expect the European Commission to find an infringement of the InfoSoc Directive (European Parliament and Council 2001) and the CRM Directive (European Parliament and Council 2014).

3.4. Prospective Benefits of Greater Competition in the Field of Collective Rights Management

Greater competition among CMOs and other copyright managers could also improve the system’s efficiency. Currently, the financial indicators of Slovenian CMOs are not encouraging. In 2024, the costs of rights management for CMOs managing public communication rights ranged from approximately 27% (IPF 2025) to 36% (ZAMP, k.o. 2025) of collected revenues, with SAZAS (2025) and AIPA (2025) reporting close to 30%. However, according to the French Commission for the Control of Copyright and Related Rights Management Organizations (Commission de contrôle des organismes de gestion des droits d’auteur et des droits voisins 2024), the appropriate ratio is 15%.

The benefits of collective rights management include reduced transaction costs for users, who thus obtain a license to use all works in the CMO repertoire instead of requesting permission from the author for each work. However, CMOs reduce only the transaction costs of searching for rightsholders whose rights they manage under contract. When CMOs also represent non-members under a legal mandate (legal trusteeship), the transaction costs of searching for non-members are not reduced but merely transferred from the user to the CMO (Katz 2012). This could also lead to revenue accumulation at the CMO, which is a sign of the system’s ineffectiveness. In 2024, the ratio of total liabilities to holders of rights on audiovisual works at the end of the year to annual revenues from rights management was 179% (AIPA 2025). However, the appropriate ratio is 100% (Commission de contrôle des organismes de gestion des droits d’auteur et des droits voisins 2024). We believe that if rightsholders could choose among CMOs, they could select the most effective one, and CMOs would strive for greater efficiency with even less state supervision.

3.5. Possible Solutions and Legislative Changes

One possible solution would be to introduce extended collective licensing, as provided for in Article 12 of the DSM Directive (European Parliament and Council 2019a). Under extended collective licensing, an agreement between the CMO and the user can be extended to cover the rights of rightsholders who have not contractually authorized the CMO to represent them. The right to issue extended collective licenses can be conferred only on a CMO that, based on its mandates, is sufficiently representative of the relevant type of works or other subject matter, provided that rightsholders can at any time easily and effectively exclude their works from the licensing mechanism.

An essential prerequisite for the admissibility of extended collective management is that the licensing mechanism applies only to precisely defined areas of use where obtaining authorizations from rightsholders on an individual basis is normally so difficult and impractical that the required licensing is unlikely to be carried out, due to the nature of the use, the types of works or other subject matter concerned, and that the mechanism protects the legitimate interests of the rightsholders. Furthermore, the CMO must be subject to the national rules implementing the CRM Directive (European Parliament and Council 2014) regarding transparency and supervision. Recently, several Member States introduced extended collective licensing, for example, Austria under § 25b of the Federal Law on Collecting Societies (Parlament 2016) and Germany under § 51 of the Collecting Societies Act (Bundestag 2016).

We believe that the effectiveness of the collective management system in Slovenia should be enhanced first, and then the possibility of introducing extended collective licenses should be examined. To improve the effectiveness of CMOs, it would first be necessary to manage exclusive rights solely on the rightsholder’s authorization, unless otherwise specified in EU law, such as for cable retransmission and the retransmission of TV and radio programs. With the introduction of rebuttable judicial presumptions that the existing CMO manages the rights to the works exploited by users, such a system may be sufficiently predictable for users. We believe that legal mandate (legal trusteeship) is an overly broad measure to ensure predictability in the use of copyrighted content.

4. Prospective Consequences of the Streamz Judgment for the Slovenian Copyright Legislation

4.1. The »New« Remuneration Right for the Authors in Slovenian Law

The CRRA-I (National Assembly 2022) has significantly reshaped relationships among key stakeholders in the creation of audiovisual works, i.e., co-authors, performers, and film producers. Slovenia has followed recent trends in comparative law to ensure creators’ fair participation in revenues from the secondary exploitation of audiovisual works through irrevocable, non-transferable remuneration rights. This strengthens CMOs’ position in the EU, as national laws on such rights usually mandate collective management (Senftleben and Izyumenko 2024). On the other hand, given the constitutional right to legal security, it is necessary to prevent new legal provisions from interfering with existing contractual relationships between creators and film producers.

The CRRA-I (National Assembly 2022) supplemented Article 76 CRRA (National Assembly 1995) with a new fifth paragraph, which provides that if the author transfers the right to retransmit television or radio programs, the author has an unwaivable right to appropriate compensation for each use of the work in the case of retransmission. The new sixth paragraph of the same Article provides that if the author transfers the right to communicate the work to the public within the framework of online content sharing services, the author has an unwaivable right to appropriate compensation for each use of the work in the case of communication to the public within the framework of online content sharing services. The user is liable for payment of appropriate compensation.

Under this provision, the legislator sought to transpose Article 18(1) of the DSM Directive (European Parliament and Council 2019a) into Slovenian law (Government of the Republic of Slovenia 2022). Article 18 provides that Member States shall ensure that authors and performers, when licensing or transferring their exclusive rights to exploit their works or other protected subject matter, are entitled to appropriate and proportionate remuneration.

CRRA-I (National Assembly 2022) also introduces significant changes to the position of creators of audiovisual works. Notwithstanding the transfer of rights to the film producer (which is also governed by a rebuttable presumption), the author of the original work and the co-authors of the audiovisual work are entitled to appropriate remuneration for each:

• Broadcasting of the audiovisual work;
• Communication of the audiovisual work to the public in the context of online content sharing services and video on demand;
• Other making available of the audiovisual work to the public for the purpose of achieving direct or indirect economic benefit (Articles 15 and 16 CRRA-I; National Assembly 2022). Again, the respective legislation implements Article 18(1) of the DSM Directive (Government of the Republic of Slovenia 2022).

4.2. The Nature of »New« Remuneration Rights

The »new« remuneration rights can be described as the so-called “remaining” or “residual” remuneration rights, or as direct claims of the author against users who use the work in a certain way. The author is entitled to these rights only if he transfers his exclusive rights of communication to the public to the producer, so this is not an independent remuneration right. “Residual” remuneration rights do not replace the author’s exclusive rights but coexist with them as part of the payment for the use of protected content, which the author cannot waive. This payment mechanism is usually applied in addition to any other payment to authors agreed in individual contracts with film producers (Senftleben and Izyumenko 2024). At the EU level, a similar “residual” remuneration right is provided for in Article 5 of Directive 2006/115/EC on rental and lending rights and on certain rights related to copyright in the field of intellectual property (European Parliament and Council 2006). The Directive expressly allows Member States to provide for mandatory collective management of this right.

A characteristic feature of remuneration rights is that the contractual relationship between the user and the rightsholder arises from the user’s use of the work as a copyright-relevant act and is governed by the law itself. Based on this statutory relationship, the beneficiary acquires a compensation claim. Claims become due for payment immediately upon their arising, and their limitation period is assessed under the general rules on limitation (Melichar 2010).

4.3. The Pending Case »Streamz« Before the CJEU

4.3.1. The Contested Belgian Legislation

With Article 54 of the Law of 19 June (Belgian Parliament 2022), the Belgian legislator introduced a right to remuneration for authors and performers in cases where the right of communication to the public, including the right of making available, has been transferred to an online content-sharing service provider. The right to remuneration is non-transferable and cannot be waived by authors or performers. It can only be exercised by CMOs. The purpose of the legislation is, on the one hand, to facilitate the enforcement of authors’ and performers’ remuneration rights and, on the other hand, to facilitate the payment of remuneration by users by providing for a CMO as a single point of contact. The system is mandatory, meaning it cannot be derogated from by contract. In the legislative process, it was suggested that the adoption of the respective provision is authorized by Article 18 of the DSM Directive (Belgian House of Representatives 2022).

Article 62 of the Law of 19 June (Belgian Parliament 2022) introduced a right to remuneration for authors and performers in cases where the public communication rights regarding uses by an information society service provider (streaming services) have been transferred to the producer. The right to remuneration is also non-transferable, unwaivable, and may only be exercised by a CMO. The proposal emphasized that Articles 60 to 62 aim to establish the same streaming system as that provided for in Article 54 (Belgian House of Representatives 2022). This amendment should guarantee authors and performers of musical or audiovisual works the appropriate remuneration for the exploitation of their works and performances by streaming platforms such as Spotify, Deezer, Netflix, and Disney+. When introducing the respective amendments, the legislator referred to the European Parliament resolution (European Parliament 2021), which encouraged Member States and the Commission to make greater use of collective rights management mechanisms in the transposition of the DSM Directive (European Parliament and Council 2019a) and in future initiatives aimed at ensuring fair remuneration.

The preparatory works (Belgian House of Representatives 2022) emphasized that with the new system, neither a new exclusive right nor a new category of the existing right of communication to the public had been created. Furthermore, the right to remuneration is limited to certain categories of works, namely musical and audiovisual works.

4.3.2. The Allegations Regarding the Incompatibility of New Legislation with EU Law

On 31 January and 1 February 2023, five constitutional challenges were filed against the Law of 19 June (Belgian Parliament 2022). Among the applicants were Spotify, Sony Music, Universal Music, Warner Music, and Streamz (a local streaming service), which challenged the conformity of the new remuneration right with EU law. Regarding Article 62 of the Law of 19 June (Belgian Parliament 2022), the applicants allege that the »new« right to remuneration infringes Article 17 of the DSM Directive (European Parliament and Council 2019a) as a maximum harmonization directive. They also claim that Article 18 of the DSM Directive (European Parliament and Council 2019a) applies only to contractual relationships and therefore cannot serve as a basis for the contested provision. The applicants believe the provision is not compatible with the exclusive rights of authors and performers protected by the InfoSoc Directive (European Parliament and Council 2001) because it infringes the principle of freedom of contract.

Regarding Article 54 of the Law of 19 June (Belgian Parliament 2022), the applicants claim that the inalienable right to remuneration complicates current licensing practices and creates a regime specific to Belgium that differs from the regimes in place in other Member States, so that this provision constitutes an unjustified restriction on the freedom to provide services, protected by Article 56 TFEU (EU 2012a). Applicants claim that the contested legislation constitutes an unjustified restriction on the principle of freedom of contract, exceeds the scope provided for in Article 18 of the DSM Directive (European Parliament and Council 2019a), infringes the right guaranteed by Article 3(2)(a) of the InfoSoc Directive (European Parliament and Council 2001), and creates discrimination between entrepreneurs offering services in the EU. Applicants emphasize that Article 18 of the DSM Directive (European Parliament and Council 2019a) precludes national legislation resulting in double payment or additional remuneration for the author or performer, and that the right to remuneration guaranteed by the contested provisions constitutes a disproportionate restriction on contractual freedom and creates unjustified equal treatment between international streaming platforms and local streaming platforms, even though these two categories are in different situations in terms of their turnover and bargaining power (Belgian Constitutional Court 2024).

The European Commissioner for the Internal Market found that the system established by Belgian legislation is not compatible with Articles 17 and 18 of the DSM Directive (European Parliament and Council 2019a). Article 17 allegedly fully harmonizes the relationship between online content-sharing service providers and the rightsholders of content uploaded by users of the services, and therefore does not allow Member States to introduce additional copyright rules in the harmonized area. The European Commissioner emphasized that Member States are free to use different mechanisms to implement the principle of appropriate and proportionate remuneration. Still, this freedom is limited by the need to comply with EU law (Belgian Constitutional Court 2024).

4.3.3. The Questions Referred by the Belgian Constitutional Court to the CJEU

In its questions for a preliminary ruling, the Belgian Constitutional Court highlighted several aspects of the potential incompatibility of Belgian law with EU law. One question asked whether Article 17 of the DSM Directive (European Parliament and Council 2019a), read together with Article 3 of the InfoSoc Directive (European Parliament and Council 2001), precludes national legislation that introduces a mandatory, inalienable, and non-transferable right to remuneration for authors and performers, where they have assigned their right to authorize or prohibit communication to the public by an online content-sharing service provider, and that provides that this right to remuneration can be exercised only through a mandatory collective rights management mechanism, particularly where the right to make available to the public has already been licensed to the aforementioned provider. The Belgian Constitutional Court (2024) also referred a question to the CJEU, namely whether such national legislation is precluded by Article 18 of the DSM Directive (European Parliament and Council 2019a). Regarding Article 56 TFEU (EU 2012a), it could be problematic that Belgian legislation did not specify a transition period during which users and producers could adapt to the new rules and payment obligations. The respective national legislation could also unreasonably interfere with the fundamental right to conduct a business under Article 16 of the Charter of Fundamental Rights (EU 2012b), read in conjunction with Articles 20 (equality before the law) and 21 (non-discrimination) of that Charter.

4.4. Possible Outcomes of the Streamz Case and Its Influence on Slovenian Copyright Law

4.4.1. Principal Conformity of Remuneration Rights with EU Law

The Advocate General has not yet published his final opinion in the Streamz case. However, we do not expect the CJEU to rule that the residual right to compensation as such is contrary to EU law. Although it interferes with the principle of contractual freedom, that principle is not absolute and may be limited to ensure a fair balance between the rights and interests at stake. According to research by the European Commission (2024), creators of protected works often do not receive a proportionate share of the revenue generated from their use on streaming platforms. In the audiovisual sector, authors’ bargaining position is particularly weak, as evidenced by contracts with film producers that often include the outright purchase of rights for a one-off payment or low fees (Legrand 2022). Such rights to remuneration can improve creators’ bargaining power, contributing to the further development of cultural creation in the EU. Given the general tone of Article 18(2) of the DSM Directive (European Parliament and Council 2019a), Member States enjoy a wide margin of discretion to use different mechanisms to provide appropriate and proportionate remuneration for creators, including by imposing the obligation of proportional remuneration directly on users.

4.4.2. The Prohibition of the Retroactive Effect of Regulations

The implementation of the residual right to remuneration in national law must comply with EU law. We believe that the Belgian legislator’s approach, which emphasizes that the right does not create a new, independent category of communication to the public right (Belgian House of Representatives 2022), is correct. The Slovenian legislator took a different approach. In the explanatory memorandum to Article 31 CRRA-I (National Assembly 2022), it has taken the position that the legislation establishes new rights that do not have a retroactive effect and cannot interfere with contracts for the transfer of copyright or related rights that were concluded before the entry into force of this legislation. This should also follow from the change in the wording of the law, which now states that the author “has” a remuneration right upon transfer, instead of the previous wording that the author “retains” a remuneration right upon transfer (Government of the Republic of Slovenia 2022). Such an approach does not consider the nature of the exclusive right to communication to the public, protected by Article 3 of the InfoSoc Directive (European Parliament and Council 2001). A user who has already obtained a license to communicate audiovisual works from a film producer (as a derivative rightsholder) has a contractually based entitlement not to pay again for the same rights of the same category of authors. The introduction of new residual rights to remuneration, when applied to existing contracts between creators, film producers and users, can therefore only have two effects: either the users will have to pay extra for a right for which they have already paid the whole contractually agreed amount (double payment), or the film producers will have to transfer part of the payment they have received or periodically receive based on a contract with the user (or through a CMO) to the co-authors of the audiovisual work and the performers. In such a case, the provisions on residual remuneration rights can result in the user or the film producer making a double payment to the creator. Therefore, we believe that the new regulation should apply only to new contracts concluded between the respective stakeholders after the introduction of the corresponding residual right in national law.

A counterargument could be the following: The constitutional starting point is set out in Article 155 of the Constitution of the Republic of Slovenia (National Assembly 1991), which prohibits the retroactive effect of legislation, allowing an exception only when three conditions are met: that the retroactive effect is expressly provided for by law, that it is required in the public interest, and that it does not interfere with acquired rights. Constitutional case law distinguishes between true retroactivity, which retrospectively alters already completed legal relationships, and apparent (or quasi-) retroactivity, where new rules apply prospectively but affect legal relationships that arose before they entered into force and are still ongoing (Šturm 2002). The introduction of statutorily recognized remuneration rights for the exploitation of protected works generally does not constitute true retroactivity, even when such exploitation is based on contracts concluded before the new regulation entered into force. The obligation to pay authors’ remuneration or compensation is linked to communication to the public or other use occurring after the law has entered into force. As such, it does not typically interfere with the already performed part of the contractual relationship but rather establishes a new legal consequence for future exploitation. In such cases, the constitutionally relevant issue is the protection of legitimate expectations.

Article 18(2) of the DSM Directive (European Parliament and Council 2019a) emphasizes Member States’ discretion to apply different mechanisms to ensure appropriate remuneration for creators. At the same time, Member States must respect the principle of contractual freedom and a fair balance between rights and interests. Article 26(2) expressly provides that this directive “shall apply without prejudice to any acts concluded and rights acquired before 7 June 2021.” This provision of the DSM Directive (European Parliament and Council 2019a) thus reflects the prohibition of retroactive effect as a cornerstone of the EU legal order. In EU law, the prohibition on the retroactive application of regulations is enshrined in the principles of protection of legitimate expectations and legal certainty, which are integral to the EU legal order (Kryvoi and Matos 2021). These principles require that legal provisions be clear and predictable and, as a rule, apply only to future situations, so that individuals and businesses can know their rights and obligations with certainty. In light of EU law, the distinction between true and apparent retroactivity under national law is irrelevant; the decisive question is solely whether the measure complies with Article 26 of the DSM Directive (European Parliament and Council 2019a), which also encompasses situations of apparent retroactivity.

Legislators in Austria (Justizausschuss des Nationalrates 2005), Germany (Bundesregierung 1998), and Switzerland (Eidgenössisches Institut für Geistiges Eigentum 2017) acknowledged that the new residual remuneration rights may conflict with the prohibition on retroactivity. In these legal systems, special provisions ensure that remuneration rights do not apply to license agreements entered into before the law that conferred those rights on creators took effect. This approach allows parties to adapt to the legal changes while avoiding interference with existing contracts and the complex issues associated with their adaptation (Bundesregierung 1998). During the transitional period, remuneration is calculated separately for each year based on the proportion of “new” works, i.e., works recorded after the amendment took effect (Urheberrechtssenat 2007).

4.4.3. Mandatory Collective Management

The DSM Directive (European Parliament and Council 2019a) does not exclude collective management mechanisms for ensuring appropriate remuneration for creators. Based on existing CJEU jurisprudence (CJEU 2024), mandatory collective management of residual remuneration rights may be permissible if the CMO meets the strict transparency and supervision requirements under the CRM Directive (European Parliament and Council 2014). However, this does not mean that legal trusteeship can also be regarded as a proportional solution. Mandatory collective management of residual remuneration rights means only that the claim to remuneration must be enforced by a CMO acting under the author’s authorization. Thus, the remuneration rights are not transferred to a CMO by law itself, but only upon the creator’s authorization. Such a solution was accepted in Austrian (Justizausschuss des Nationalrates 2005) and German law (Bundesregierung 1998). Under Swiss law (Eidgenössisches Institut für Geistiges Eigentum 2017), authors of audiovisual works not produced in Switzerland are entitled to remuneration only if the country where the work was created also provides for such a right. This approach appropriately reflects the fact that comparable remuneration rights are not recognized in all EU Member States, and are likewise absent in certain non-EU countries from which a large share of cultural goods is imported.

5. Collective Management of the Private Copying Levy and the Gaps in Slovenian Legislation

5.1. EU Law

Article 2(a) of the InfoSoc Directive (European Parliament and Council 2001) obligates Member States to ensure that authors enjoy the exclusive right to reproduce their works ‘in any form, in any manner, in whole or in part’. Article 5(2)(a) and (b) set out two cases in which Member States may restrict this exclusive right: the reprography exception and the private copying exception. Remuneration for copyright exceptions in the EU is typically collected and distributed through collective rights management (Geiger 2010). The CJEU has interpreted Articles 5(2)(a) and (b) of the InfoSoc Directive (European Parliament and Council 2001) as having direct effect (Rosati 2025).

The CJEU (2015) reiterated that these two exceptions partially overlap. The exception for reprography covers any reproduction on paper or similar media, including reproduction for private purposes. The exception for private copying covers any reproduction for private use, including reproductions on paper or similar media. Reproduction for commercial purposes is allowed only under the reprography exception. The exception for reprography is not based on the technique used but on the result to be achieved. It applies only to reproductions on paper or another medium with similar characteristics, i.e., comparable and equivalent to paper, but only to analog media, not to digital media (CJEU 2013).

From EU law, the following premises arise:

• National law of the Member States must precisely specify which acts of reproduction are permitted without the rightsholder’s prior authorization and to whom.
• All exceptions or limitations on copyright and related rights must be grounded in EU law.
• In specific cases, under EU law, the national legislator must provide a remuneration system for exceptions or limitations to copyright and related rights.
• Fair compensation must include compensation to the rightsholders for the harm they have suffered due to the unrestricted use of the works.
• The legislator must establish an effective system for collecting fair compensation (Drobež 2025).

5.2. Implementation of the Private Copying Exception in EU Member States

The EU lacks a uniform system of private copying levies, and Kretschmer (2011) notes that levies on the same devices sold across different EU countries vary substantially. The CJEU, through its case law, contributes significantly to harmonizing the compensation system, particularly in its application to new technologies such as cloud copying (CJEU 2022) and, in the future, probably also to streaming services (Senftleben and Izyumenko 2024).

The Czech Supreme Court recently addressed whether a private copying levy should be paid for smart mobile phones. It held that the fact that a mobile phone is used primarily for making calls, rather than for private copying, is not decisive in determining the author’s right to fair compensation. What is decisive is the product’s very capability to enable its users to make private reproductions of works (Telec and Tůma 2025).

5.3. Implementation of Private Copying Exception in Slovenian Law

Article 50(2) CRRA (National Assembly 1995) grants natural persons the right to reproduce a work freely: 1. on paper or a similar medium using photocopying or other photographic techniques with similar effects, or 2. on any other medium, provided that the copies are for private use, are not distributed or made available to the public, and are not intended to yield any direct or indirect economic benefit. This provision was adopted in 2004 to align Slovenian law’s existing copyright exceptions and limitations with the Infosoc Directive (European Parliament and Council 2001). Article 50 CRRA (National Assembly 1995) distinguishes between natural persons (paragraph 2) and public institutions (paragraph 3), and, within these categories, further distinguishes by medium (Government of the Republic of Slovenia 2004).

The rightsholder cannot prohibit reproduction to the extent permitted under Article 50 CRRA (National Assembly 1995). In exchange, Article 37 grants the rightsholder fair compensation for (1) audio or visual recording and (2) photocopying of protected works. Article 37(2) and (3) further stipulate that compensation for sound and visual recording shall be paid: 1. upon the first sale or import of new sound and visual recording devices, and 2. upon the first sale or import of new blank sound or image carriers. Compensation for photocopying shall be paid: 1. upon the first sale or import of new photocopying equipment, and 2. on photocopies made for sale, monthly according to their estimated number.

Terms such as “audio and visual recording” appear outdated in the context of contemporary technology. In this regard, Article 37(4) states that photocopying is equivalent to other similar reproduction techniques and that devices for audio and visual recording are equivalent to other devices that enable the same effect. But it is unclear whether digital photographs should be classified as “photocopies” or as “audiovisual recordings”. Although they share the static character of photocopies, they are produced in digital form rather than on paper (Drobež 2025).

The Regulation on compensation amounts for private and other personal reproduction (Government of the Republic of Slovenia 2006) lists examples of devices capable of creating »photocopies« or »sound and visual recordings«. Among photocopying devices, Article 4(1) lists only one device capable of transforming a physical item into a digital copy: the optical reader (scanner).

5.4. Collective Management of the Right to Fair Compensation for Private and Personal Use in Slovenia

In Slovenia, two CMOs collect reprography and private copying levies. The SAZOR GIZ collects and distributes reprography levies to authors and publishers of works in literature, science, and journalism, and their translations (SIPO 2007), whereas the Kopriva Association collectively manages the right to fair compensation for audio or visual recordings made under the conditions of private or other personal use, to which authors, performers, phonogram producers, and film producers are entitled (SIPO 2019). The license covers only the collection of fair compensation and its distribution to CMOs, authorized to distribute compensation among the entitled rightsholders. The amount of fair compensation for audio or visual recordings on mobile phones depends on the wholesale price and ranges from €3.20 to €12.20 per device (Kopriva Association and Slovenian Chamber of Commerce 2020).

According to Article 9(3) of the CMCRRA (National Assembly 2016), collective management of fair compensation for private and other personal use of works and their photocopying beyond the scope of Article 50 CRRA (National Assembly 1995) is mandatory. Mandatory collective management of the private copying levy is permissible under EU law because it is treated as a remuneration for an exception to an exclusive right, which is based on EU law.

5.5. Recent Jurisprudence of Slovenian Courts Regarding Levies for Reprography

Recent case law clearly shows that unclear legislation and the unclear scope of CMOs’ licenses harm rightsholders (Higher Court of Ljubljana 2024a, 2024b). SAZOR GIZ sought reprography remuneration from several manufacturers and importers of mobile phones sold in Slovenia between 2016 and 2018, arguing that such devices can function as scanning tools and thereby enable reprographic reproduction. However, the court-appointed expert delivered the opinion that the mobile phone models available during the relevant period did not support high-quality text reproduction, like classic scanners. Upon the opinion of the court expert, the court ruled that these mobile phones were either not used to reproduce copyright-protected works or that any such use was negligible due to the low quality of the copies (Higher Court of Ljubljana 2024a, 2024b). The dismissal of SAZOR’s legal claims obligated SAZOR to pay the full legal costs of the proceedings, which gravely affected its relatively modest revenues.

5.6. Findings

Article 50(2) CRRA (National Assembly 1995) covers two categories of exceptions: 1. copying on paper or a similar medium—reprography—and 2. copying on any other medium. By its wording, it allows copying only for private, non-commercial purposes. Therefore, Article 5(2)(b) of the InfoSoc Directive fully covers both categories. The reprography exception is further covered by Article 5(2)(a) of the InfoSoc Directive (European Parliament and Council 2001), as it relates to copying on paper or a similar medium. However, it is narrower than the latter because it does not cover photocopying for professional purposes. The right to photocopy for professional purposes is construed as an exclusive right under Slovenian law. Still, because it is only managed collectively, the effect for rightsholders is the same as if it were construed as a mere right to compensation. The second category of exception (copying on any other medium), when Slovenian law is interpreted consistently with the InfoSoc Directive (European Parliament and Council 2001), must be understood to cover only analog copies and exclude digital ones (CJEU 2013).

We believe that the wording of Article 37(1) CRRA (National Assembly 1995) should not differ from that of Article 50. The Article 37 CRRA should explicitly state that fair compensation is due for (1) mechanical photocopying (reprography) and (2) reproduction on other media, including digital copies. Supplementing the law with explanations beyond its literal meaning (such as Article 37(4) CRRA) is confusing and, when remuneration is divided between two CMOs, may lead to numerous legal disputes. The system should be designed so that certain types of use are not excluded from the remuneration system, while at the same time preventing double-charging users. Only such a system is effective and compliant with EU law requirements (Drobež 2025).

6. Discussion

Mandatory collective management under Slovenian law goes beyond the mere obligation of rightsholders to exercise their rights through a CMO. The Slovenian system provides for a statutory transfer of exclusive rights to a CMO, which may occur even against the rightsholder’s will. The adoption of the CRRA-I (National Assembly 2022) drew the European Commission’s attention because the legislation extended mandatory collective management to the communication to the public of audiovisual works, including communication via the internet. Considering the CJEU judgment in Soulier (CJEU 2016), we concur with the opinion of von Ungern-Sternberg (2020) that mandatory collective management of exclusive rights is permissible only when EU law itself provides for a limitation or exception to the exclusive right concerned or prescribes mandatory collective management, such as in the case of cable retransmission (European Parliament and Council 2001) and the retransmission of television and radio programs (European Parliament and Council 2019b). Since Slovenian law appears to exceed the limits set by EU law, we consider it likely that the European Commission, in the proceedings against Slovenia, will find an infringement of Article 3 of the InfoSoc Directive (European Parliament and Council 2001), which confers on the authors the exclusive right of communication of their works to the public, and of the CRM Directive (European Parliament and Council 2014), which allows the rightsholder to choose which CMO will manage their rights freely. A system based on contractual collective management could also incentivize CMOs to operate more efficiently. If rightsholders were free to choose their CMO, organizations would face pressure to reduce administrative costs and improve their distribution practices. This, in turn, could limit the accumulation of unallocated revenues and reduce the extent to which funds remain unduly retained at the level of the CMO. The introduction of rebuttable judicial presumptions that the existing CMO manages the rights in works exploited by users could provide sufficient legal certainty and predictability for users. In our view, safeguarding predictability in the use of copyrighted content does not require a legal mandate (legal trusteeship), which constitutes a disproportionate interference with rightsholders’ exclusive rights.

The CRRA-I (National Assembly 2022) introduced several new remuneration rights, among which the unwaivable and non-transferable “residual” remuneration rights for the communication to the public of audiovisual works are particularly significant. These rights allow authors of audiovisual works to retain a claim to remuneration despite the transfer of exclusive rights to the film producer, thereby ensuring their fair participation in revenues from the secondary exploitation of such works. Comparative law recognizes similar mechanisms (Despringe 2025). However, introducing such statutory remuneration rights interferes with contractual freedom in audiovisual production and may undermine legal certainty. Comparative approaches in Austria (Justizausschuss des Nationalrates 2005), Germany (Bundesregierung 1998), and Switzerland (Eidgenössisches Institut für Geistiges Eigentum 2017) ensure that the enforcement of residual remuneration rights does not interfere with pre-existing contractual arrangements between authors and producers. For this reason, Article 31 CRRA-I should be amended to clarify that the newly introduced remuneration rights apply only to film production contracts concluded after it enters into force. Such a solution would ensure compliance with Article 26 of the DSM Directive (European Parliament and Council 2019a). Furthermore, legal trusteeship should be avoided in cases involving residual remuneration rights. Not all EU Member States provide for equivalent remuneration rights, and even fewer third countries that account for a significant share of the audiovisual and musical works consumed by EU citizens, such as the USA, do so. In such circumstances, statutory trusteeship of residual remuneration rights may result in a growing accumulation of funds at the CMO level, as collected amounts often cannot be distributed when beneficiaries cannot be identified or contacted. The CJEU, in the Streamz case, can clarify in detail the strict conditions under which it is permissible to introduce a residual remuneration right subject to mandatory collective management. From this perspective, the Streamz case will be of considerable importance for the Slovenian copyright landscape.

The challenges within the Slovenian copyright legislative framework stem not only from recent statutory amendments but also from earlier, suboptimal implementations of EU law. Rapid technical development and digitalization have exposed the outdated nature of the current legislative framework. The widespread use of mobile phones has significantly changed how written works are reproduced. Copies may be made either through dedicated scanning applications or simply by photographing the work with the device’s built-in camera. While it is plausible that reproducing literary and scientific works on mobile phones has become routine, only empirical data could confirm the true scope of this practice. Under Article 50(2) CRRA (National Assembly 1995), such reproductions fall within the private copying exception. Yet uncertainty arises regarding remuneration: it is not entirely clear whether these acts should be treated as “photocopying” or as “audio and visual recording” within the meaning of Article 37(1)? This distinction is crucial because it determines the competent CMO. Given that the Kopriva Association, under the Joint Agreement with Slovenian Chamber of Commerce (Kopriva Association and Slovenian Chamber of Commerce 2020), collects compensation for storage capacity in mobile devices, mobile phone copying appears to be at least partially covered. The more nuanced question, however, is whether the increasing use of scanning technologies has expanded the volume of reproductions to the point that the remuneration collected through Kopriva and ZAMP no longer corresponds to the actual harm suffered by rightsholders. Greater legislative coherence between Articles 37 and 50 ZASP, together with appropriately aligned collective management mandates, would enhance legal clarity in this regard (Drobež 2025).

The thorough analysis of pressing issues in the collective management of exclusive and remuneration rights reveals a complex interplay between EU and national law. The article offers an overview of Slovenia’s copyright protection system, highlights potential incompatibilities with EU law, and proposes legislative solutions. The paper’s findings show that Member States can design an effective copyright protection system that respects EU law.