# C_2010246EN.01001802.xml

| 11.9.2010 | EN | Official Journal of the European Union | C 246/18 |
| --- | --- | --- | --- |

11.9.2010

EN

Official Journal of the European Union

C 246/18

---

Reference for a preliminary ruling from the Handelsgericht Vienna (Austria) lodged on 3 June 2010 — Martin Luksan v Petrus van der Let

(Case C-277/10)

()

2010/C 246/31

Language of the case: German

Referring court

Referring court

Handelsgericht Vienna

Parties to the main proceedings

Parties to the main proceedings

Applicant: Martin Luksan

Applicant:

Defendant: Petrus van der Let

Defendant:

Questions referred

Questions referred

| 1. | Must the provisions of European Union law concerning copyright and related rights, and in particular Article 2(2), (5) and (6) of Directive 92/100, (1) Article 1(5) of Directive 93/83/EEC (2) and Article 2(1) of Directive 2006/116, (3) in conjunction with Article 4 of Directive 92/100, Article 2 of Directive 93/83 and Articles 2 and 3 and Article 5(2)(b) of Directive 2001/29, (4) be interpreted as meaning that the principal director of a cinematographic or audiovisual work or other authors of films designated by the legislatures of the Member States are directly (primarily) entitled in all events, by law, to the exploitation rights in respect of reproduction, satellite broadcasting and other communication to the public through the making available to the public and that the film-maker is not entitled thereto directly (primarily) and exclusively;
  Are laws of the Member States which assign the exploitation rights by law directly (primarily) and exclusively to the film-maker inconsistent with European Union law? |
| --- | --- |

1.

Must the provisions of European Union law concerning copyright and related rights, and in particular Article 2(2), (5) and (6) of Directive 92/100, (1) Article 1(5) of Directive 93/83/EEC (2) and Article 2(1) of Directive 2006/116, (3) in conjunction with Article 4 of Directive 92/100, Article 2 of Directive 93/83 and Articles 2 and 3 and Article 5(2)(b) of Directive 2001/29, (4) be interpreted as meaning that the principal director of a cinematographic or audiovisual work or other authors of films designated by the legislatures of the Member States are directly (primarily) entitled in all events, by law, to the exploitation rights in respect of reproduction, satellite broadcasting and other communication to the public through the making available to the public and that the film-maker is not entitled thereto directly (primarily) and exclusively;

1

2

3

4

or other authors of films designated by the legislatures of the Member States

Are laws of the Member States which assign the exploitation rights by law directly (primarily) and exclusively to the film-maker inconsistent with European Union law?

If the answer to Question 1 is in the affirmative:

| 2a. | Does European Union law grant the legislatures of the Member States the option of providing for a legal presumption in favour of a transfer to the film-maker of the exploitation rights within the meaning of paragraph 1 to which the principal director of a cinematographic or audiovisual work or other authors of films designated by the legislatures of the Member States are entitled, even in respect of rights other than rental and lending rights, and if so, must the conditions laid down in Article 2(5) and (6) of Directive 92/100, in conjunction with Article 4 of that directive, be satisfied? |
| --- | --- |

2a.

Does European Union law grant the legislatures of the Member States the option of providing for a legal presumption in favour of a transfer to the film-maker of the exploitation rights within the meaning of paragraph 1 to which the principal director of a cinematographic or audiovisual work or other authors of films designated by the legislatures of the Member States are entitled, even in respect of rights other than rental and lending rights, and if so, must the conditions laid down in Article 2(5) and (6) of Directive 92/100, in conjunction with Article 4 of that directive, be satisfied?

a legal presumption in favour of a transfer to the film-maker of the exploitation rights within the meaning of paragraph 1

or other authors of films designated by the legislatures of the Member States are entitled, even in respect of rights other than rental and lending rights, and if so, must the conditions laid down in Article 2(5) and (6) of Directive 92/100, in conjunction with Article 4 of that directive, be satisfied?

| 2b. | Must the primary ownership of rights of the principal director of a cinematographic or audiovisual work, or of other authors of films designated by the legislature of a Member State also be applied to the rights granted by the legislature of a Member State to equitable remuneration, such as ‘empty cassette remuneration’ pursuant to Paragraph 42b of the Austrian Urhebergesetz (Copyright law), or to rights to fair compensation within the meaning of Article 5(2)(b) of Directive 2001/29? |
| --- | --- |

2b.

Must the primary ownership of rights of the principal director of a cinematographic or audiovisual work, or of other authors of films designated by the legislature of a Member State also be applied to the rights granted by the legislature of a Member State to equitable remuneration, such as ‘empty cassette remuneration’ pursuant to Paragraph 42b of the Austrian Urhebergesetz (Copyright law), or to rights to fair compensation within the meaning of Article 5(2)(b) of Directive 2001/29?

or of other authors of films designated by the legislature of a Member State

If the answer to Question 2b is in the affirmative:

| 3. | Does European Union law grant the legislatures of the Member States the option of providing for a legal presumption in favour of a transfer to the film-maker of the rights to remuneration within the meaning of paragraph 2 to which the principal director of a cinematographic or audiovisual work or other authors of films designated by the legislatures of the Member States are entitled, and if so, must the conditions laid down in Article 2(5) and (6) of Directive 92/100, in conjunction with Article 4 of that directive, be satisfied? |
| --- | --- |

3.

Does European Union law grant the legislatures of the Member States the option of providing for a legal presumption in favour of a transfer to the film-maker of the rights to remuneration within the meaning of paragraph 2 to which the principal director of a cinematographic or audiovisual work or other authors of films designated by the legislatures of the Member States are entitled, and if so, must the conditions laid down in Article 2(5) and (6) of Directive 92/100, in conjunction with Article 4 of that directive, be satisfied?

or other authors of films designated by the legislatures of the Member States

If the answer to Question 3 is in the affirmative:

| 4. | If a legal provision of a Member State accords to the principal director of a cinematographic or audiovisual work or other authors of films designated by the legislatures of the Member States a right to half of the statutory rights to remuneration, but provides that that right is capable of alteration and not therefore unwaivable, is that provision consistent with the aforementioned provisions of European Union law in the area of copyright and related rights? |
| --- | --- |

4.

If a legal provision of a Member State accords to the principal director of a cinematographic or audiovisual work or other authors of films designated by the legislatures of the Member States a right to half of the statutory rights to remuneration, but provides that that right is capable of alteration and not therefore unwaivable, is that provision consistent with the aforementioned provisions of European Union law in the area of copyright and related rights?

or other authors of films designated by the legislatures of the Member States

---

(1)  Council Directive 92/100/EEC of 19 November 1992 on rental right and lending right and on certain rights related to copyright in the field of intellectual property (OJ 1992 L 346, p. 61)

1

(2)  Council Directive 93/83/EEC of 27 September 1993 on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission (OJ 1993 L 248, p. 15)

2

(3)  Directive 2006/116/EC of the European Parliament and of the Council of 12 December 2006 on the term of protection of copyright and certain related rights (codified version) (OJ 2006 L 372, p. 12)

3

(4)  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 (OJ 2001 L 167, p. 10)

4

---