Opinion of the Advocate General — ECLI:EU:C:2002:543
Date: 2002-09-26
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Right of establishment;Freedom of establishment;Intellectual, industrial and commercial property;Approximation of laws;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Netherlands

Summary of the Judgment 
Approximation of laws — Copyright and related rights — Rental right and lending right 
of protected works — Directive 92/100 — Broadcasting and transmission to the 
public — Equitable renumeration — Concept — Uniform interpretation — Implemen­
tation by Member States — Criteria — Limits 
(Council Directive 92/100, Art. 8(2)) 
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SUMMARY — CASE C-245/00 
Article 8(2) of Directive 92/100 on rental 
right and lending right and on certain rights 
related to copyright in the field of intellec­
tual property requires the Member States to 
lay down rules ensuring that users pay an 
equitable remuneration when a phonogram 
is used for broadcasting or any form of 
communication to the public. The concept 
of equitable remuneration in that provision 
must be interpreted uniformly in all the 
Member States and applied by each 
Member State; it is for each Member State 
to determine, in its own territory, the most 
appropriate criteria for assuring, within the 
limits imposed by Community law and 
Directive 92/100 in particular, adherence 
to that Community concept. 
In that regard, Article 8(2) does not pre­
clude a model for calculating what con­
stitutes equitable remuneration that oper­
ates by reference to variable and fixed 
factors, such as the number of hours of 
phonograms broadcast, the viewing and 
listening densities achieved by the radio 
and television broadcasters represented by 
the broadcast organisation, the tariffs fixed 
by agreement in the field of performance 
rights and broadcast rights in respect of 
musical works protected by copyright, the 
tariffs set by the public broadcast organi­
sations in the Member States bordering on 
the Member State concerned, and the 
amounts paid by commercial stations, pro­
vided that that model is such as to enable a 
proper balance to be achieved between the 
interests of performing artists and pro­
ducers in obtaining remuneration for the 
broadcast of a particular phonogram, and 
the interests of third parties in being able to 
broadcast the phonogram on terms that are 
reasonable, and that it does not contravene 
any principle of Community law. 
(see paras 33, 38, 46, 
operative part 1-2) 
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