# C_2009032EN.01000202.xml

| 7.2.2009 | EN | Official Journal of the European Union | C 32/2 |
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7.2.2009

EN

Official Journal of the European Union

C 32/2

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Judgment of the Court (Fourth Chamber) of 11 December 2008 (reference for a preliminary ruling from the Marknadsdomstolen — Sweden) — Kanal 5 Ltd, TV 4 AB v Föreningen Svenska Tonsättares Internationella Musikbyrå (STIM)

(Case C-52/07) (1)

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(Copyright - Copyright management organisation enjoying a de facto monopoly - Collection of royalties relating to the broadcast of musical works - Method of calculating those royalties - Dominant position - Abuse)

de facto

(2009/C 32/03)

Language of the case: Swedish

Referring court

Marknadsdomstolen

Parties to the main proceedings

Applicant: Kanal 5 Ltd, TV 4 AB

Applicant:

Defendant: Föreningen Svenska Tonsättares Internationella Musikbyrå (STIM)

Defendant:

Re:

Reference for a preliminary ruling — Interpretation of Article 82 EC — Payments made by commercial television channels to an organisation responsible for the management of the performing rights of musical works — Calculation of payments based on a percentage of the revenue from, inter alia, subscriptions and advertising.

Operative part of the judgment

| 1) | Article 82 EC must be interpreted as meaning that a copyright management organisation with a dominant position on a substantial part of the common market does not abuse that position where, with respect to remuneration paid for the television broadcast of musical works protected by copyright, it applies to commercial television channels a remuneration model according to which the amount of the royalties corresponds partly to the revenue of those channels, provided that that part is proportionate overall to the quantity of musical works protected by copyright actually broadcast or likely to be broadcast, unless another method enables the use of those works and the audience to be identified more precisely without however resulting in a disproportionate increase in the costs incurred for the management of contracts and the supervision of the use of those works. |
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1)

Article 82 EC must be interpreted as meaning that a copyright management organisation with a dominant position on a substantial part of the common market does not abuse that position where, with respect to remuneration paid for the television broadcast of musical works protected by copyright, it applies to commercial television channels a remuneration model according to which the amount of the royalties corresponds partly to the revenue of those channels, provided that that part is proportionate overall to the quantity of musical works protected by copyright actually broadcast or likely to be broadcast, unless another method enables the use of those works and the audience to be identified more precisely without however resulting in a disproportionate increase in the costs incurred for the management of contracts and the supervision of the use of those works.

| 2) | Article 82 EC must be interpreted as meaning that, by calculating the royalties with respect to remuneration paid for the broadcast of musical works protected by copyright in a different manner according to whether the companies concerned are commercial companies or public service undertakings, a copyright management organisation is likely to exploit in an abusive manner its dominant position within the meaning of that article if it applies with respect to those companies dissimilar conditions to equivalent services and if it places them as a result at a competitive disadvantage, unless such a practice may be objectively justified. |
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2)

Article 82 EC must be interpreted as meaning that, by calculating the royalties with respect to remuneration paid for the broadcast of musical works protected by copyright in a different manner according to whether the companies concerned are commercial companies or public service undertakings, a copyright management organisation is likely to exploit in an abusive manner its dominant position within the meaning of that article if it applies with respect to those companies dissimilar conditions to equivalent services and if it places them as a result at a competitive disadvantage, unless such a practice may be objectively justified.

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(1)  OJ C 95, 28.4.2007.

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