Opinion of the Advocate General — ECLI:EU:C:2005:249
Date: 2005-04-21
Language of the case: French
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Right of establishment;Intellectual, industrial and commercial property;Approximation of laws;Freedom to provide services;Copyright and related rights
Procedure: Reference for a preliminary ruling
Origin: France

Summary of the Judgment 1. Approximation of laws — Copyright and neighbouring rights — Directive 93/83 — Satellite broadcasting and cable retransmission — Use by a broadcasting company transmitting from the territory of one Member State of a transmitter situated on the territory of another Member State — Royalty for phonogram use governed by the law of both States — Whether permissible (Council Directive 93/83) 2. Approximation of laws — Copyright and neighbouring rights — Rental right and lending right in respect of protected works — Directive 92/100 — Use by a broadcasting company transmitting from the territory of one Member State of a transmitter situated on the territory of another Member State — Royalty for phonogram use — Right of a broadcasting company to deduct from the royalty paid in the State in which the terrestrial transmitter is located — None (Council Directive 92/100, Art. 8(2)) 1. Where a broadcasting company transmitting from the territory of one Member State uses, in order to extend the transmission of its programmes to a part of its national audience, a transmitter situated nearby on the territory of another Member State, Directive 93/83 on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission does not preclude the fee for phonogram use being governed not only by the law of the Member State in whose territory the broadcasting company is established but also by the legislation of the Member State in which, for technical reasons, the terrestrial transmitter broadcasting to the first State is located. (see para. 44, operative part 1) 2. Article 8(2) of Directive 92/100 on rental right and lending right and on certain rights related to copyright in the field of intellectual property must be interpreted as meaning that, for determination of the equitable remuneration mentioned in that provision, the broadcasting company is not entitled unilaterally to deduct from the amount of the royalty for phonogram use payable in the Member State in which it is established the amount of the royalty paid or claimed in the Member State in whose territory the terrestrial transmitter broadcasting to the first State is located. (see para. 55, operative part 2)