Opinion of the Advocate General — ECLI:EU:C:2011:545
Date: 2011-09-06
Language of the case: German
Subject matter: Right of establishment;External relations;Intellectual, industrial and commercial property;Approximation of laws;Freedom to provide services;International agreements;Copyright and related rights
Procedure: Reference for a preliminary ruling
Origin: Austria

Summary of the Judgment 1. International agreements — Agreements concluded by the Member States — Agreements preceding a Member State’s accession to the European Union — Agreement allowing the Member State to adopt a measure contrary to European Union law — Obligation of the Member State to refrain from adopting such a measure — Incompatibility resulting from a development in European Union law — Not possible for the Member State to rely on the agreement in order to exempt itself from the obligations that have arisen from that development (Art. 351 TFEU) 2. Approximation of laws — Copyright and related rights — Rights to exploit a cinematographic work — Rights belonging by operation of law to the principal director of the work (European Parliament and Council Directives 2001/29, Arts 2 and 3, 2006/115, Arts 2 and 3, and 2006/116, Art. 2; Council Directive 93/83, Arts 1 and 2) 3. Approximation of laws — Copyright and related rights — Rights to exploit a cinematographic work — Possibility for the Member States of laying down a legal presumption that those rights are transferred to the producer of the work — Condition — Rebuttable presumption (European Parliament and Council Directives 2001/29 and 2006/115, Art. 3(4) and (5)) 4. Approximation of laws — Copyright and related rights — Rights to exploit a cinematographic work — Rights belonging by operation of law to the principal director of the work (European Parliament and Council Directive 2001/29, Art. 5(2)(b)) 5. Approximation of laws — Copyright and related rights — Rights to exploit a cinematographic work — Right to fair compensation under the private copying exception — Not possible for the Member States to lay down a legal presumption that that right is transferred to the producer of the work (European Parliament and Council Directive 2001/29, Art. 5(2)(b)) 1. The purpose of the first paragraph of Article 351 TFEU is to make clear, in accordance with the principles of international law, that application of the Treaty does not affect the commitment of the Member State concerned to respect the rights of third countries under an agreement preceding its accession and to comply with its corresponding obligations. However, when such an agreement allows, but does not require, a Member State to adopt a measure which appears to be contrary to European Union law, the Member State must refrain from adopting such a measure. That case-law must also be applicable mutatis mutandis when, because of a development in European Union law, a legislative measure adopted by a Member State in accordance with the power offered by an earlier international agreement appears contrary to European Union law. In such a situation, the Member State concerned cannot rely on that agreement in order to exempt itself from the obligations that have arisen subsequently from European Union law. (see paras 61-63) 2. Articles 1 and 2 of Directive 93/83 on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission, and Articles 2 and 3 of Directive 2001/29 on the harmonisation of certain aspects of copyright and related rights in the information society in conjunction with Articles 2 and 3 of Directive 2006/115 on rental right and lending right and on certain rights related to copyright in the field of intellectual property and with Article 2 of Directive 2006/116 on the term of protection of copyright and certain related rights, must be interpreted as meaning that rights to exploit a cinematographic work (reproduction right, satellite broadcasting right and any other right of communication to the public through the making available to the public) vest by operation of law, directly and originally, in the principal director. Consequently, those provisions must be interpreted as precluding national legislation which allocates those exploitation rights by operation of law exclusively to the producer of the work in question. Article 2 of Directive 93/83 and Articles 2 and 3 of Directive 2001/29 cannot be interpreted, in the light of Article 1(4) of the WIPO (World Intellectual Property Organisation) Copyright Treaty, as meaning that a Member State might in its national legislation, on the basis of Article 14bis of the Berne Convention for the Protection of Literary and Artistic Works and in reliance upon the power which that convention article is said to accord to it, deny the principal director of a cinematographic work the rights to exploit that work, because such an interpretation, first, would not respect the competence of the European Union in the matter, second, would not be compatible with the aim pursued by Directive 2001/29 and, finally, would not be consistent with the requirements flowing from Article 17(2) of the Charter of Fundamental Rights of the European Union guaranteeing the protection of intellectual property. (see paras 71, 72, operative part 1) 3. European Union law must be interpreted as allowing the Member States the option of laying down a presumption of transfer, in favour of the producer of a cinematographic work, of rights to exploit the cinematographic work (satellite broadcasting right, reproduction right and any other right of communication to the public through the making available to the public), provided that such a presumption is not an irrebuttable one precluding the principal director of that work from agreeing otherwise. (see para. 87, operative part 2) 4. European Union law must be interpreted as meaning that, in his capacity as author of a cinematographic work, the principal director thereof must be entitled, by operation of law, directly and originally, to the right to the fair compensation provided for, under the ‘private copying’ exception, in Article 5(2)(b) of Directive 2001/29 on the harmonisation of certain aspects of copyright and related rights in the information society. (see para. 95, operative part 3) 5. European Union law must be interpreted as not allowing the Member States the option of laying down a presumption of transfer, in favour of the producer of a cinematographic work, of the right to fair compensation vesting in the principal director of that work, whether that presumption is couched in irrebuttable terms or may be departed from. Unless it is to be deprived of all practical effect, Article 5(2)(b) of Directive 2001/29 on the harmonisation of certain aspects of copyright and related rights in the information society imposes on a Member State which has introduced the private copying exception into its national law an obligation to achieve a certain result, in the sense that that State must ensure, within the framework of its powers, that the fair compensation intended to compensate the rightholders harmed for the prejudice sustained is actually recovered. Imposition on the Member States of such an obligation to achieve the result of recovery of the fair compensation for the rightholders proves conceptually irreconcilable with the possibility for a rightholder to waive that fair compensation and, a fortiori, with an option for the Member States to lay down such a presumption of transfer. (see paras 106, 108, 109, operative part 4)