Opinion of the Advocate General — ECLI:EU:C:2019:423
Date: 2019-05-16
Language of the case: French
Subject matter: Right of establishment;Intellectual, industrial and commercial property;Approximation of laws;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: France

Summary C-484/18 — 1 
Case C-484/18 
Summary of the request for a preliminary ruling under Article 98(1) of the 
Rules of Procedure of the Court of Justice 
Date lodged:  
20 July 2018 
Referring court:  
Cour de cassation (Court of Cassation, France) 
Date of the order for reference:  
11 July 2018 
Appellants in the cassation proceedings:  
Société de perception et de distribution des droits des artistes-
interprètes de la musique and de la danse 
PG 
GF 
Respondent in the Cassation proceedings:  
Institut national de l’audiovisuel (INA) 
  
I. Subject matter and facts of the dispute 
1 The INA (French National Audiovisual Institute) is responsible for conserving and 
promoting the national audiovisual heritage. It keeps the audiovisual archives of 
‘national broadcasting companies’ (national radio and television stations) and 
helps with their exploitation.  
2 PG and GF allege that the INA marketed on its website without their authorisation 
video recordings and a phonogram reproducing performances by the jazz 
drummer of whom they are the successors in title.  
3 The INA relies on specific statutory provisions that allow it to exploit the archives 
in return for paying performers royalties set by collective agreements concluded 
with their representative trade unions.  
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-484/18 
 
2  
4 The successors in title counter, inter alia, that those statutory provisions 
derogating from the protection of performers conflict with 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 (‘Directive 2001/29’). 
5 By judgment of 10 March 2017, the cour d’appel de Versailles (Court of Appeal, 
Versailles, France) dismissed the claims for compensation brought against the 
INA. 
6 Hearing the appeal brought by the successors in title, the Cour de cassation (Court 
of Cassation, France) has decided to refer a question on the interpretation of 
various provisions of Directive 2001/29 to the Court of Justice for a preliminary 
ruling.  
II. The relevant provisions 
A. EU law  
7 The passages of Directive 2001/29 relevant to the present case read as follows:  
8 The recitals:  
(3)  The proposed harmonisation will help to implement the four freedoms of 
the internal market and relates to compliance with the fundamental principles of 
law and especially of property, including intellectual property, and freedom of 
expression and the public interest.  
... 
(9) Any harmonisation of copyright and related rights must take as a basis a high 
level of protection, since such rights are crucial to intellectual creation. Their 
protection helps to ensure the maintenance and development of creativity in the 
interests of authors, performers, producers, consumers, culture, industry and the 
public at large. Intellectual property has therefore been recognised as an integral 
part of property.  
...  
(32)  This Directive provides for an exhaustive enumeration of exceptions and 
limitations to the reproduction right and the right of communication to the public. 
Some exceptions or limitations only apply to the reproduction right, where 
appropriate. This list takes due account of the different legal traditions in Member 
States, while, at the same time, aiming to ensure a functioning internal market. 
Member States should arrive at a coherent application of these exceptions and 
limitations, which will be assessed when reviewing implementing legislation in 
the future. 
SOCIETE DE PERCEPTION ET DE DISTRIBUTION DES DROITS DES ARTISTES 
 
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9 Article 2 
Reproduction right 
Member States shall provide for the exclusive right to authorise or prohibit direct 
or indirect, temporary or permanent reproduction by any means and in any form, 
in whole or in part: 
… 
(b) for performers, of fixations of their performances. 
10 Article 3 
Right of communication to the public of works and right of making available to 
the public other subject-matter 
… 
2. Member States shall provide for the exclusive right to authorise or prohibit the 
making available to the public, by wire or wireless means, in such a way that 
members of the public may access them from a place and at a time individually 
chosen by them: 
(a) for performers, of fixations of their performances. 
11 Article 5 
Exemptions and restrictions 
1. Temporary acts of reproduction referred to in Article 2, which are transient or 
incidental [and] an integral and essential part of a technological process and 
whose sole purpose is to enable: 
(a) a transmission in a network between third parties by an intermediary, or 
(b) a lawful use 
of a work or other subject-matter to be made, and which have no independent 
economic significance, shall be exempted from the reproduction right provided for 
in Article 2. 
2. Member States may provide for exceptions or limitations to the reproduction 
right provided for in Article 2 in the following cases: 
… 
3. Member States may provide for exceptions or limitations to the rights provided 
for in Articles 2 and 3 in the following cases: 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-484/18 
 
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… . 
B. French legislation 
Law No 86-1067 of 30 September 1986 on freedom of communication (as 
amended, in particular by the Law of 1 August 2006) 
Article 49 
… 
I. The [INA] shall conserve the audiovisual archives of national broadcasting 
companies and assist with their exploitation. ... 
II. The [INA] shall exploit extracts from the audiovisual archives of national 
broadcasting companies … 
The INA shall remain the owner of the media and technical material and shall 
hold the rights to exploit the audiovisual archives of national broadcasting 
companies ... 
The Institute shall exercise the exploitation rights to which this paragraph refers 
having due regard for the personal and economic rights of the holders of copyright 
or related rights and their successors in title. However, by way of derogation from 
Articles L. 212-3 and L. 212-4 of the Intellectual Property Code, the terms on 
which the works of performers in the archives to which this article refers are 
exploited and the remuneration for that exploitation shall be governed by 
agreements concluded between the performers themselves or the employee 
organisations representing performers and the Institute. Those agreements must 
specify in particular the scale of remuneration and the arrangements for payment 
of that remuneration. 
III. Positions of the parties 
The INA 
12 As the Court of Appeal, Versailles, stated, it is apparent from the wording itself of 
Article 49 II of the Law on freedom of communication that it is not necessary to 
prove that the performer authorised the first exploitation of his or her work as a 
condition for the derogating provisions established for the benefit of the INA to 
apply. Their application is subject only to agreements concluded with the 
performers in question or with the employee organisations representing 
performers. Such agreements have been concluded with those organisations. 
Although the agreements were entered into prior to the law coming into effect, on 
the one hand, the law does not make the provisions in question applicable only to 
subsequent agreements and, on the other hand, the agreement of 16 June 2005 
between the INA and the main trades unions representing employees involved in 
SOCIETE DE PERCEPTION ET DE DISTRIBUTION DES DROITS DES ARTISTES 
 
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television broadcasting establishes a remuneration system governing new uses of 
archived performances ‘irrespective of the information held by the INA 
concerning them’. That agreement is one of the agreements required for the 
derogating provisions to apply. It is common ground that the video recordings and 
the phonogram at issue in the present case are subject to those derogating 
provisions. Accordingly, under Article 49 II of the Law on freedom of 
communication, the INA was not required to provide evidence of the written 
agreement of the performer or his successors in title. 
The appellants in the cassation proceedings 
13 The appellants in the cassation proceedings argue in particular that, whilst the 
INA’s task of conserving and promoting the national audiovisual heritage is in the 
general interest, the pursuit of that objective and that interest cannot justify a 
derogation not envisaged by the EU legislature from the protection that Directive 
2001/29/EC affords performers such as to authorise the INA commercially to 
exploit the media on which their performances have been fixed.  
14 They refer to the judgment of 16 November 2016, Soulier and Doke (C-301/15, 
EU:C:2016:878), in which the Court of Justice held that, although Directive 
2001/29 does not preclude national legislation from pursuing an objective in the 
cultural interest of consumers and of society as a whole, the pursuit of that 
objective and of that interest cannot justify a derogation not provided for by the 
EU legislature from the protection afforded authors by that directive (judgment of 
16 November 2016, Soulier and Doke, C-301/15, EU:C:2016:878, paragraphs 29 
and 45). 
15 In their view, by ruling as it did, the Court of Appeal misconstrued Articles 2, 3 
and 5 of Directive 2001/29/EC. 
IV. Assessment of the Court of Cassation 
16 Under Article 49 of the Law on freedom of communication, the INA is 
responsible for conserving and promoting the national audiovisual heritage. In that 
capacity, it enjoys rights to exploit extracts from the audiovisual archives of 
national broadcasting companies. It exercises those rights having due regard for 
the personal and economic rights of the holders of copyright or related rights and 
their successors in title. 
17 However, the INA initially found itself unable to exploit some of its holdings 
because, in the production dossiers of the programmes in question, it did not hold 
the contracts of employment concluded with the performers concerned, and was 
therefore obliged to obtain the written authorisation of the performers or their 
successors in title, who could prove difficult or even impossible to identify and 
locate. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-484/18 
 
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18 To enable the INA to fulfil its public service mandate, Article 49 of the Law on 
freedom of communication was amended on 1 August 2006 to make exploitation 
of performers’ works from the archives subject to agreements concluded by the 
INA with the performers or with the performers’ representative organisations. 
Those derogating provisions are not conditional on the performers having 
authorised the first exploitation of their work. 
19 Moreover, under Article 2(b) of Directive 2001/29, Member States are to provide 
for the exclusive right to authorise or prohibit direct or indirect, temporary or 
permanent reproduction by any means and in any form, in whole or in part, for 
performers, of fixations of their performances. 
20 Under Article 3(2)(a), Member States are to provide for the exclusive right to 
authorise or prohibit the making available to the public, by wire or wireless 
means, in such a way that members of the public may access them from a place 
and at a time individually chosen by them, for performers, of fixations of their 
performances. 
21 Article 2(c) and (d) and Article 3(2)(b) and (c) of Directive 2001/29 require the 
Member States to provide for identical rights to those of performers for 
phonogram producers and the producers of the first fixations of films. 
22 Article 5 of Directive 2001/29 allows the Member States to provide for various 
exceptions and limitations to the reproduction right and the right of 
communication to the public provided for in Articles 2 and 3 of that directive, in 
the cases listed in Article 5. Recital 32 of Directive 2001/29 indicates that this list 
of exceptions and limitations to the reproduction right and the right of 
communication to the public is exhaustive.  
23 The derogating provisions enjoyed by the INA do not fall within any of the 
exceptions and limitations that the Member States are entitled to establish under 
Article 5 of Directive 2001/29. 
24 The judgment of 16 November 2016, Soulier and Doke (C-301/15) cannot be 
transposed to the present case. Although the legislation on out-of-print books did 
indeed derogate from the protection that Directive 2001/29 provides for authors, 
the derogating provisions established for the benefit of the INA in pursuit of the 
general interest, which enable it to exploit the rights it holds, are intended to 
reconcile the rights of performers with the, equally important, rights of producers. 
25 It is therefore necessary to determine whether Article 2(b), Article 3(2)(a) and 
Article 5 of the directive must be interpreted as precluding the derogating 
provisions that the INA enjoys under Article 49 II of the Law on freedom of 
communication. 
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V. The question referred 
26 The Court of Justice of the European Union is asked to rule on the following 
question: 
‘Must Article 2(b), Article 3(2)(a) and Article 5 of 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 be 
interpreted as not precluding national rules, such as those laid down in Article 49 
II of Law No 86-1067 of 30 September 1986 on freedom of communication, as 
amended by Article 44 of Law No 2006-961 of 1 August 2006, from establishing, 
for the benefit of the National Audiovisual Institute, the beneficiary of the 
exploitation rights of national broadcasting companies in the audiovisual archives, 
derogating provisions under which the terms on which performers’ works can be 
exploited and the remuneration for that exploitation are governed by agreements 
concluded between the performers themselves or the employee organisations 
representing performers and that institute, which must specify, inter alia, the scale 
of remuneration and the arrangements for payment of that remuneration?’