Opinion of the Advocate General — ECLI:EU:C:2012:18
Date: 2012-01-17
Language of the case: Danish
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: Denmark

Summary of the Judgment 1. Approximation of laws — Copyright and related rights — Directive 2001/29 — Harmonisation of certain aspects of copyright and related rights in the information society — Reproduction right — Exceptions and limitations — Ephemeral recordings of works made by broadcasting organisations by means of their own facilities and for their own broadcasts (European Parliament and Council Directive 2001/29, Art. 5(2)(d)) 2. Approximation of laws — Copyright and related rights — Directive 2001/29 — Harmonisation of certain aspects of copyright and related rights in the information society — Reproduction right — Exceptions and limitations — Ephemeral recordings of works made by broadcasting organisations by means of their own facilities and for their own broadcasts — Own facilities — Meaning — Facilities of any third party acting on behalf of or under the responsibility of such an organisation — Included (European Parliament and Council Directive 2001/29, recital 41 and Art. 5(2)(d)) 3. Approximation of laws — Copyright and related rights — Directive 2001/29 — Harmonisation of certain aspects of copyright and related rights in the information society — Reproduction right — Exceptions and limitations — Ephemeral recordings of works made by broadcasting organisations by means of their own facilities and for their own broadcasts (European Parliament and Council Directive 2001/29, Art. 5(2)(d)) 1. The expression ‘by means of their own facilities’ in Article 5(2)(d) of Directive 2001/29 on the harmonisation of certain aspects of copyright and related rights in the information society, under which Member States may provide for exceptions or limitations to the reproduction right laid down in Article 2 of that directive in respect of ephemeral recordings of works made by broadcasting organisations by means of their own facilities and for their own broadcasts, must be given an independent and uniform interpretation within the framework of European Union law. In that regard, the European Union is obliged to comply with, inter alia, Article 11bis of the Berne Convention for the Protection of Literary and Artistic Works, which expressly states that it is a matter for legislation in the countries of the Berne Union to determine the regulations for ephemeral recordings made by a broadcasting organisation by means of its own facilities and used for its own broadcasts. However, by adopting Directive 2001/29, the European Union legislature is deemed to have exercised the competence previously devolved on the Member States in the field of intellectual property. Within the scope of that directive, the European Union must be regarded as having taken the place of the Member States, which are no longer competent to implement the relevant stipulations of the Berne Convention. (see paras 27, 29-31, 37, operative part 1) 2. Article 5(2)(d) of Directive 2001/29 on the harmonisation of certain aspects of copyright and related rights in the information society, read in the light of recital 41 in the preamble to that directive, must be interpreted as meaning that a broadcasting organisation’s own facilities include the facilities of any third party acting on behalf of or under the responsibility of that organisation. The first case, namely, that in which the third party acts ‘on behalf of’ the broadcasting organisation, presupposes a direct and immediate link between the two parties, on the basis of which the third party in question does not, as a general rule, have any degree of independence. That link is unambiguous vis-à-vis other persons, since, by definition, all of the third party’s activities are necessarily attributable to the organisation in question. The second case, in which the third party acts ‘under the responsibility’ of the broadcasting organisation, implies a more complex, mediate link between the two parties, which allows the third party a degree of freedom in the use of its facilities, while protecting the interests of other persons vis-à-vis the organisation in question, given that it is that organisation which is ultimately responsible for such use, in respect of compensation, with regard to other persons, in particular authors. Each of the two conditions set out in recital 41 in the preamble to Directive 2001/29 is, in itself and independently of the other, capable of fulfilling the objective pursued by Article 5(2)(d) of that directive, read in the light of that recital. Accordingly, those two conditions must be understood as being equivalent and, therefore, alternative in nature. (see paras 53-56, 58, operative part 2) 3. For the purposes of ascertaining whether a recording made by a broadcasting organisation, for its own broadcasts, with the facilities of a third party, is covered by the exception laid down in Article 5(2)(d) of Directive 2001/29 on the harmonisation of certain aspects of copyright and related rights in the information society in respect of ephemeral recordings, it is for the national court to assess whether, in the circumstances of the dispute before it, that party may be regarded as acting specifically ‘on behalf of’ the broadcasting organisation or, at the very least, ‘under the responsibility’ of that organisation. As regards whether that party may be regarded as acting ‘under the responsibility’ of the broadcasting organisation, it is essential that, vis-à-vis other persons, among others the authors who may be harmed by an unlawful recording of their works, the broadcasting organisation is required to pay compensation for any adverse effects of the acts and omissions of the third party, such as a legally independent external television production company, connected with the recording in question, as if the broadcasting organisation had itself carried out those acts and made those omissions. By contrast, the question of who took the final artistic or editorial decision on the content of the reproduced programme commissioned by the broadcasting organisation is irrelevant. (see paras 65, 67, operative part 3)