Opinion of the Advocate General — ECLI:EU:C:2011:431
Date: 2011-06-29
Language of the case: Italian
Subject matter: External relations;Commercial policy;Intellectual, industrial and commercial property;Approximation of laws;World Trade Organization;International agreements;Copyright and related rights
Procedure: Reference for a preliminary ruling
Origin: Italy

summary, that there are not sufficiently certain grounds, either in recital 23 or in the drafting history of Directive 2001/29, to restrict the concept of communication in Article 3(1) of that directive, from a technical perspective, to cases where a transmission of the signal, which can be distinguished from the original broadcast, is made to a television or radio, and to exclude automatic reception by televisions or radios from that concept. – Interim conclusion 111. It must be stated, as an interim conclusion, that where a dentist makes a radio broadcast audible in his practice by means of a radio, he indirectly communicates the phonograms which are used in the radio broadcast for the purposes of Article 8(2) of Directive 2006/115. (ii) The concept of public 112. It is likewise not defined in Directive 2006/115 what is meant by communication ‘to the public’. 113. Unlike in the case of the definition of the concept of communication, the legal definition of communication to the public in Article 2(g) of the WPPT does not offer any assistance in this connection. In that provision there is no further clarification of the ‘public’ element of communication to be defined. It is merely stated that the sounds must be made audible to the public, with the result that the legal definition appears to be meaningless in this regard. 114. Nevertheless, reference can be made in this connection to the Court’s abovementioned case-law on the interpretation of the concept of communication to the public within the meaning of Article 3(1) of Directive 2001/29. (42) As I explained in my Opinion delivered today in Phonographic Performance, the concept of public in Article 3(1) of Directive 2001/29 and in Article 8(2) of Directive 2006/115 should, in principle, be given a consistent interpretation. I therefore refer to the relevant statements contained in points 96 to 111 of that Opinion. 115. If the criteria developed by the Court in SGAE are applied, there is much to suggest that communication to the public can also be taken to exist in a case like the present one. The phonograms are also communicated indirectly to a new public in a case like the present one, by the radio broadcast being made audible. In the waiting room of a dental practice the patients will not be present for as long, but their visits will be in quicker succession than in hotel bedrooms, with the result that a successive-cumulative effect can also be assumed here, which leads to very extensive availability of the phonograms. 116. However, the question also arises whether on the abovementioned grounds the concept of communication to the public within the meaning of Article 8(2) of Directive 2006/115 is to be interpreted, having regard to recital 23 in the preamble to Directive 2001/29, as meaning that no communication to the public can be taken to exist in a case like the present one. As stated above, in recital 23 in the preamble to Directive 2001/29 the Union legislature wished to exclude from the group of persons to be regarded as a public within the meaning of Article 3(1) of the directive the persons present at the place where the communication originates. The aim was that direct representation and performance should not be covered by the concept of communication to the public. (43) 117. The Commission argues, with reference to the Opinion of Advocate General Kokott in Football Association Premier League and Others, that it is thus intended to exclude the persons who are present at the place where there is an automatic reception television. In the case of an automatic reception television, the place where the communication originates is the place where the television is located. (44) 118. That argument cannot be accepted. 119. First of all, that view is not compatible with the approach taken by the Court in SGAE. It can be seen from that judgment that, in the case of an automatic reception television, the place where the communication originates is not the place where the television is located. (45) 120. There are also more convincing arguments for the approach taken by the Court. The reference in recital 23 in the preamble to Directive 2001/29 to the place where the communication originates cannot be construed as meaning that in the case of automatic reception televisions this is the place where the television is located. 121. First, the natural meaning of the word ‘originate’ suggests that it does not mean the place where the communication ultimately takes place. 122. Such a reading is also suggested by the abovementioned drafting history of the directive. The Union legislature’s aim with the clarification in recital 23 was that representation or performance to the public should not be covered by the concept of communication to the public. (46) That aim is achieved if the audience, which has no physical distance from the original representation or performance of the work, is excluded from the concept of communication to the public. (47) Listeners to a radio programme have such a physical distance, however. 123. Furthermore, the connection between recital 23 and recital 24 in the preamble to Directive 2001/29 militate against an approach whereby the place where the communication originates in the case of automatic reception equipment is deemed to be the place where the equipment is located. Under recital 24, the right to make available to the public under Article 3(2) of Directive 2001/29 should be understood as covering all acts of making available to members of the public not present at the place where the act of making available originates. If the place where the act of making available originates also meant the place where the equipment on which the phonograms are ultimately played is located, Article 3(2) of the directive would largely be deprived of its practical effectiveness. In many cases this will be equipment in a private household. It would therefore be more compelling for me to construe recital 23, and also recital 24, as meaning that only the audience of the direct performance or representation, as the audience present at the place where the communication originates, is excluded from the concept of communication under Article 3(1) of Directive 2001/29. 124. Furthermore, an argument against an approach whereby the place where the communication originates in the case of an automatic reception radio is the place where the radio is located is the fact that this would produce inconsistent results. According to that approach, in a case where a number of automatic reception radios were provided in a bar there would be no communication within the meaning of Article 3(1) of Directive 2001/29. On the other hand, if only two radios were provided in that bar and a signal was distributed to them by means of equipment in the cellar of the building, there would be communication within the meaning of Article 3(1) of Directive 2001/29. It seems unlikely that the Union legislature wished to accept such an inconsistent result. 125. In a case like the present one, the place where the communication originates within the meaning of Article 3(1) of Directive 2001/29 is therefore the place where the original performance or representation was recorded on the phonograms. 126. The Commission’s plea must therefore be rejected because, on the abovementioned grounds, it cannot be inferred from recital 23 that the audience in front of an automatic reception television cannot be taken into consideration for the purposes of Article 3(1) of Directive 2001/29. 127. If the Court were to interpret the concept of communication to the public under Article 3(1) of Directive 2001/29, departing from its previous case-law, as not covering communication to an audience in front of automatic reception equipment, the Commission’s plea would have to be rejected, secondly, because such an approach cannot be applied to the concept of communication within the meaning of Article 8(2) of Directive 2006/115. The concept of communication within the meaning of Article 8(2) of Directive 2006/115 must be interpreted having regard to Article 15 in conjunction with Article 2(g) of the WPPT. Under that provision, communication of phonograms exists where the sounds fixed in a phonogram are made audible to the public. Thus, the concept of communication within the meaning of Article 8(2) of Directive 2006/115 at least covers the audience which is present at the place of communication. (48) 128. Recital 23 in the preamble to Directive 2001/29 does not therefore require an interpretation of the public aspect of communication within the meaning of Article 8(2) of Directive 2006/115, under which, in the case of automatic reception radios, the audience present at the place where the radio is located is not taken into consideration. (iii) The other pleas 129. The other pleas raised by the parties cannot be accepted. – The need for an entrance fee 130. First of all, the existence of communication to the public within the meaning of Article 8(2) of Directive 2006/115 does not depend on an entrance fee being paid. First of all, there is nothing in the wording of Article 8(2) of Directive 2006/115 to indicate such a requirement. Secondly, this view is countered by the schematic connection with Article 8(3) of the directive. That provision establishes an exclusive right for broadcasting organisations to authorise or prohibit the communication to the public of their broadcasts if such communication is made in places accessible to the public against payment of an entrance fee. It can be inferred a contrario from the fact that that provision cumulatively requires the existence of communication to the public and communication in places accessible to the public against payment of an entrance fee that the existence of communication to the public requires neither the public nature of the place nor the payment of an entrance fee. – Profit-making purpose 131. Furthermore, I am not convinced by the pleas that no communication to the public can be taken to exist because, in the present case, the service provided by the dentist is the primary service, and not the communication of the phonograms, and because the dentist acted without a profit-making purpose. 132. First of all, the existence of communication to the public does not depend on whether the user pursues a profit-making purpose. 133. The concept of communication to the public does not imply that it is dependent on a profit-making purpose. 134. Furthermore, not only does the connection with the abovementioned Article 8(3) of Directive 2006/115 militate against such a requirement, but also the connection with Article 5 of Directive 2001/29, to which Article 10(2) of Directive 2006/115 refers. Thus, Article 5(3)(a), (b) and (j) of Directive 2001/29 provides that Member States may provide for exceptions or limitations to the right of communication to the public provided they are in respect of certain privileged uses and no commercial purpose, or no commercial purpose going beyond the privileged activity, is pursued. It follows, conversely, that communication to the public can also exist where no commercial purpose or no profit-making purpose is pursued. 135. It is also not evident from SGAE that a profit-making purpose is a relevant factor. The Court did stress the profit-making purpose of the hotel operators. However, this does not mean that it regarded this as a mandatory requirement for communication to the public. (49) 136. Furthermore, focusing on the profit-making purpose would appear to lead to difficult problems of delimitation. It would then be necessary to decide for each service whether the communication of a phonogram is sufficiently insignificant to be of secondary importance to the principal service. 137. Lastly, against the background of these arguments, the argument put forward by the Italian Government that a financial right like Article 8(2) of Directive 2006/115 may not be granted where the user does not pursue a profit‑making purpose with the communication to the public must also be rejected. It is not clear to me why, in the example given of a political event, the author should have an exclusive right, but the phonogram producers and the performers should have no right at all. Furthermore, the absence of a profit-making purpose on the part of the user can be taken into consideration under Article 8(2) of Directive 2006/115 in assessing what remuneration is adequate for such use. 138. Secondly, I would like to point out, in the alternative, that a profit-making purpose can certainly be taken to exist in a case like the present one. Even though radio broadcasts to which patients in a dental practice listen are certainly not an essential part of the service provided by the dentist, it cannot be denied that they may have a practical benefit. It will, as a rule, be more pleasant for patients in a waiting room to listen to radio broadcasts than the noise of the drill from the treatment room. In addition, such broadcasts provide entertainment during the waiting times which generally occur in dental practices. The fact that the price of treatment is not dependent on whether or not phonograms are audible is, in my view, not capable of ruling out a profit-making purpose. In order to assume such a purpose, it is sufficient that there is an element of the service which is liable to improve the overall picture of the service from the patient’s perspective. This seems to be the case on the basis of the above arguments. – The will of the patients 139. Furthermore, the fact that communication takes place irrespective of the will of the patients and is even regarded by them as a constant annoyance is irrelevant in assessing the public aspect of the communication. – The other pleas 140. The other pleas also cannot be accepted. 141. First of all, the public aspect of communication for the purposes of Article 8(2) of Directive 2006/115 does not require the public to have an autonomous social, economic or legal dimension. Such a dimension is also absent in other cases in which there is undoubtedly a public, such as in railway or underground stations. In addition, in the field of copyright and related rights, the dimension or the homogeneity of the group of persons which may constitute the public is not relevant. (50) 142. Secondly, the plea that a dentist’s patients are not all gathered in his practice at the same time must be rejected on the ground that a cumulative effect, which can also be achieved through a succession of visits to the waiting room, is sufficient. (iv) Conclusion 143. Article 8(2) of Directive 2006/115 is therefore to be interpreted as meaning that communication to the public exists for the purposes of that provision where a dentist provides a radio in his waiting room, by which he broadcasts a radio programme. (d) The other requirements 144. With regard to the further requirement of a ‘user’ within the meaning of Article 8(2) of Directive 2006/115, it can be stated that any person who communicates the phonograms to the public uses them for the purposes of that provision. 145. With regard to the obligation to pay equitable remuneration, I refer to points 118 to 144 of my Opinion delivered today in Case C‑162/10 Phonographic Performance. 4. Conclusion 146. Article 8(2) of Directive 2006/115 is thus to be interpreted as meaning that a dentist who provides a radio in his practice, by which he makes radio broadcasts audible for his patients, is required to pay equitable remuneration for the indirect communication of the phonograms which are used in the radio broadcasts. VII – The first to third questions 147. By its first and second questions, the referring court is seeking to ascertain whether the relevant rules of international law contained in the Rome Convention, the WPPT and TRIPs are directly applicable within the Union legal order and whether they may also be relied on directly by private individuals. By its third question, it wishes to know whether the concept of communication to the public within the meaning of the provisions of international law cited by it mirrors the concept contained in Directives 92/100 and 2001/29 and, if not, which source should take precedence. A – Main arguments of the parties 148. In the view of SCF, these questions must be answered in the affirmative. The relevant provisions of international law all form an integral part of the Union legal order and are directly applicable in private-law relationships. Furthermore, Union law must be interpreted as far as possible in conformity with international law, but may go beyond the stipulations of international law. Union law can achieve a higher level of protection than the relevant stipulations of international law, since the rules on copyright and related rights are constantly evolving. 149. In the view of Marco del Corso, the Rome Convention is directly applicable in the Union legal order because it has been integrated into the TRIPs agreement, to which the European Union has acceded. The European Union has also acceded to the WPPT. The question of precedence does not arise because the relevant provisions of international law and of Union law are identical. 150. In the view of the Italian Government, there is no need to answer the first three questions. The European Union adopted the directives to implement the WPPT. Only the interpretation of those directives is therefore relevant. 151. In the view of the Commission, the first two questions must be answered in the negative. As far as the Rome Convention is concerned, this is because it is not part of the Union legal order. As far as TRIPs and the WPPT are concerned, the Commission points out that the referring court did not refer to any specific provisions. In so far as provisions mentioned by the referring court in its order for reference are at issue, these questions must be answered in the negative. The Court has consistently held that a provision of an international treaty is directly applicable only if it contains a clear, precise and unconditional obligation which is not dependent on any other implementing measure. As far as GATT is concerned, the Court has always denied that that international treaty has direct effect. This case-law also applies to TRIPs and the WPPT. Like TRIPs, the WPPT also provides that the Contracting Parties must implement the provisions of that agreement. This is confirmed by Article 14 of the WCT and Article 23(1) of the WPPT, which expressly provide that the Contracting Parties must adopt the measures necessary to ensure the application of those treaties. The Union adopted those measures in Directive 2001/29. B – Admissibility of the questions 152. I have serious doubts as to whether, in the light of the answers given to the fourth and fifth questions, the referring court will have a practical need for the answers to the first to third questions. In the fourth and fifth questions Article 8(2) of Directive 2006/115 has been interpreted having regard to the rules of international law. In so far as the referring court can take this provision of the directive, which is consistent with international law, into consideration in the main proceedings, the autonomous application of the rules of international law will no longer be important. 153. Nevertheless, the questions cannot be rejected as not being relevant to the decision. The question of the direct application of the provisions of international law could be relevant if the referring court cannot take Article 8(2) of Directive 2006/115 into consideration in the main proceedings. It does seem possible to interpret the relevant national rules in conformity with the directives (and thus also with international law). However, it is ultimately a matter of national law, for which the referring court alone has jurisdiction, whether such an interpretation is possible. In the (in my view unlikely) case that an interpretation in conformity with the directives is not possible, Article 8(2) of the directive cannot apply directly, however, because the dispute is between private individuals. 154. The relevance of the first three questions to the decision cannot therefore be denied. C – Legal assessment 155. Since, on the above grounds, the answers to the first three questions will probably have only a limited practical benefit for the purposes of the main proceedings, I would like to be brief in answering those questions. 156. A requirement for the direct applicability of a rule of international law is that it is part of an international agreement concluded by the Union and, regard being had to its wording and the purpose and nature of the agreement itself, it contains a clear and precise obligation which is not subject, in its implementation or effects, to the adoption of any subsequent measure. It must thus be sufficiently precise and unconditional. (51) 157. Article 12 of the Rome Convention cannot therefore be a directly applicable rule of Union law because the Union is not a Contracting Party to that Convention. 158. In so far as the referring court relies on TRIPs, it should be pointed out that the TRIPs agreement does not contain a provision corresponding to Article 8(2) of Directive 2006/115. Article 14 of the TRIPs agreement, which governs the related rights of performers and of phonogram producers, does not contain any such right to equitable remuneration for performers or phonogram producers. (52) 159. In any case, the very strict position taken by the Court with regard to the direct applicability of the WTO agreements in general would suggest that a provision of the TRIPs agreement is not directly applicable. According to settled case-law, which will not be assessed in detail at this juncture, for the reasons mentioned above, the WTO agreements, including TRIPs, are not capable of direct application on account of their nature and structure. (53) 160. In so far as the direct application of Article 15 of the WPPT is concerned, the question arises, first, whether that agreement is intended to confer rights directly on private individuals. Regard should be had in this connection in particular to Article 23(1) of the WPPT, under which Contracting Parties undertake to adopt, in accordance with their legal systems, the measures necessary to ensure the application of this Treaty. That provision could be construed as requiring the Member States to adopt further measures, which might militate against the direct applicability of the provisions of the WPPT. In support of this view, it could be mentioned that many provisions of the WPPT allow the Contracting Parties a broad margin of discretion. However, the question arises whether Article 23(1) of the WPPT precludes the direct application of certain provisions of the WPPT, where they are sufficiently precise and unconditional. 161. There is no need to answer this question for the purposes of the present case. Article 2(g) and Article 15 of the WPPT do not contain sufficiently precise rules to indicate whether the right to equitable remuneration also applies in cases like the present one, where the concept of communication is understood functionally and the public nature of the communication is established with reference to the idea of a successive-cumulative public. It is agreed that no firm requirements can be inferred from the WPPT in such cases. Because of the lack of indications on the definition of the concepts of public and private communication in the WPPT, the Contracting Parties enjoy a considerable margin of discretion in deciding when to assume the existence of communication to the public. (54) 162. To counter this view, it cannot be argued that in SGAE the Court based the interpretation of the concept of communication to the public in Article 3(1) of Directive 2001/29 on the relevant rules of international law. With regard to the crucial question whether the criterion of a new audience may be used as a criterion for the existence of a new communication to the public, the Court did not rely on the provisions of the Berne Convention. That criterion had been deliberately rejected by the Contracting Parties to the Berne Convention. (55) Instead, the Court based its interpretation on the WIPO Guide to the Berne Convention, a document which was not legally binding. A legally binding clarification of the concept of public has thus not been laid down in the relevant provisions of international law, but only in Union law, under Article 3(1) of Directive 2001/29. 163. Article 2(g) and Article 15 of the WPPT are also therefore not provisions on which the parties to the main proceedings may rely directly. VIII – Conclusion 164. On the abovementioned grounds, I propose that the Court answer the questions referred as follows: (1) Article 8(2) of Council Directive 92/100/EEC of 19 November 1992 on rental right and lending right and on certain rights related to copyright in the field of intellectual property and of Directive 2006/115/EC of the European Parliament and of the Council of 12 December 2006 on rental right and lending right and on certain rights related to copyright in the field of intellectual property (codified version) is to be interpreted as meaning that a dentist who provides a radio in his waiting room, by which he makes a radio broadcast audible for his patients, is required to pay equitable remuneration for the indirect communication to the public of the phonograms which are used in the radio broadcast. (2) In accordance with Union law, neither Article 12 of the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations of 26 October 1961, nor Article 15 of the WIPO Performances and Phonograms Treaty (WPPT) of 20 September 1996, nor Article 14 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs) are rules of international law on which a party may rely directly in a dispute between private individuals. 1 – Original language: German. Language of the case: Italian. 2 – OJ 1992 L 346, p. 61. 3 – OJ 2006 L 376, p. 28. 4 – Case C‑306/05 [2006] ECR I‑11519. 5 – OJ 2001 L 167, p. 10. 6 – Reproduced in the German Bundesgesetzblatt 1965 II, p. 1245. 7 – See Council Decision 2000/278/EC of 16 March 2000 on the approval, on behalf of the European Community, of the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT) (OJ 2000 L 89, p. 6). 8 – Annex 1C to the WTO Agreement, OJ 1994 L 336, p. 214. 9 – In accordance with the terms used in the TEU and in the TFEU, the expression ‘Union law’ will be used as an umbrella expression for Community law and European Union law. Where individual provisions of primary law are relevant hereinafter, the rules which are applicable ratione temporis will be cited. 10 – Case C‑245/00 SENA [2003] ECR I‑1251. 11 – OJ 2006 L 372, p. 12. 12 – Opinion of Advocate General Kokott in Joined Cases C‑403/08 and C‑429/08 Football Association Premier League and Others [2011] ECR I‑9083. 13 – See Joined Cases 28/62 to 30/62 Da Costa and Others [1963] ECR 65, 81; Case 62/72 Bollmann [1973] ECR 269, paragraph 4; Case C‑261/95 Palmisani [1997] ECR I‑4025, paragraph 31; and Case C‑2/06 Kempter [2008] ECR I‑411, paragraph 41 et seq. 14 – Cited in footnote 4. 15 – Ibid. paragraph 36. 16 – Ibid., paragraph 36. 17 – Ibid., paragraph 37. In this connection, it first cited the judgment in Case C‑89/04 Mediakabel [2005] ECR I‑4891, paragraph 30, in which it interpreted the concept of reception of a television programme by the public, in connection with Article 1(a) of Council Directive 89/552/EEC of 3 October 1989 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities (OJ 1989 L 298, p. 23), as depending on an indeterminate number of potential television viewers. It also invoked the judgment in Case C‑192/04 Lagardère Active Broadcast [2005] ECR I‑7199, paragraph 31, in which it interpreted the concept of communication to the public by satellite, in connection with Article 1(2)(a) of Council Directive 93/83/EEC of 27 September 1993 on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission (OJ 1993 L 248, p. 15), as depending on an indeterminate number of potential listeners. 18 – Ibid., paragraphs 38 and 39. 19 – Ibid., paragraph 40. 20 – Ibid., paragraph 41. 21 – Ibid., paragraph 42. 22 – Ibid., paragraph 43. 23 – Ibid., paragraph 44. 24 – Ibid., paragraphs 45 and 46. 25 – Case C‑150/99 Stockholm Lindöpark [2001] ECR I‑493, paragraph 38, and Case C‑566/07 Stadeco [2009] ECR I‑5295, paragraph 43. 26 – SGAE, cited in footnote 4, paragraph 31. 27 – SENA, cited in footnote 10, paragraph 34. 28 – Ibid., paragraphs 34 to 38. 29 – Case C‑61/94 Commission v Germany [1996] ECR I‑3989, paragraph 52, and SGAE, cited in footnote 4, paragraph 35. See, in that connection, Rosenkranz, F., ‘Die völkerrechtliche Auslegung des EG-Sekundärrechts dargestellt am Beispiel des Urheberrechts’, Europäische Zeitschrift für Wirtschaftsrecht, 2007, p. 238 et seq. 30 – See point 80 of this Opinion. 31 – Reinbothe, J. and Von Lewinski, S., The EC Directive on Rental and Lending Rights and on Piracy, Sweet & Maxwell, 1993, p. 97. 32 – Article 12 of the Rome Convention provides for such a right only in respect of direct transmissions. The Contracting Parties to the WPPT deliberately went further than the Rome Convention in this respect. 33 – See, in this connection, point 67 of the Opinion of Advocate General Sharpston in Case C‑306/05 SGAE, cited in footnote 4, and point 22 of the Opinion of Advocate General La Pergola in Case C‑293/98 Egeda [2000] ECR I‑629. 34 – See also Ullrich, J.N., ‘Die “öffentliche Wiedergabe” von Rundfunksendungen in Hotels nach dem Urteil “SGAE” des EuGH (Rs. C-306/05)’, Zeitschrift für Urheber- und Medienrecht 2008, p. 112 et seq., 117 et seq. 35 – Cited in footnote 12. 36 – Ibid., points 127 to 147. 37 – See the description of the judgment in points 65 to 73 of this Opinion. 38 – See point 50 of the Opinion of Advocate General Sharpston in Case C‑306/05 SGAE (cited in footnote 4). 39 – Case C‑306/05 SGAE, cited in footnote 4, paragraph 41. 40 – See Communication from the Commission to the European Parliament pursuant to the second subparagraph of Article 251(2) of the EC Treaty concerning the common position of the Council on the adoption of a Directive of the European Parliament and of the Council on the harmonisation of certain aspects of copyright and related rights in the information society, SEC(2000) 1734 final. 41 – Walter, M., Lewinsky, S., European Copyright Law, Oxford University Press 2010, p. 981. 42 – See points 65 to 73 of this Opinion. 43 – See points 106 to 109 of this Opinion. 44 – See points 144 and 146 of the Opinion of Advocate General Kokott in Football Association Premier League and Others (cited in footnote 12). 45 – Otherwise, in the case of an automatic reception television, there could be no communication to the public, which the Court appears to have accepted in that case. 46 – See point 104 et seq. of this Opinion. 47 – Reinbothe, J., ‘Die EG-Richtlinie zum Urheberrecht in der Informationsgesellschaft’, Gewerblicher Rechtsschutz und Urheberrecht – Internationaler Teil 2001, p. 733 et seq., 736. 48 – Lewinsky, S., International Copyright and Policy, Oxford University Press 2008, p. 481. 49 – See Walter, M., Lewinsky, P. (cited in footnote 41), p. 990. 50 – See Walter, M., Lewinsky, P. (cited in footnote 41), p. 990. 51 – Case 12/86 Demirel [1987] ECR 3719, paragraph 14, and Case C‑162/96 Racke [1998] ECR I‑3655, paragraph 31. 52 – See Correa, C., Trade related aspects of intellectual property rights, Oxford University Press 2007, pp. 156 and 162, and Busche, J., Stoll, P.-T., TRIPs – Internationales und europäisches Recht des geistigen Eigentums, Carl Heymanns Verlag 2007, pp. 268 and 272. 53 – Case C‑149/96 Portugal v Council [1999] ECR I‑8395, paragraph 47. 54 – See Lewinski, S., Walter, M. (cited in footnote 41), p. 988. 55 – See point 50 of the Opinion of Advocate General Sharpston in SGAE (cited in footnote 4).