Opinion of the Advocate General — ECLI:EU:C:2020:512
Date: 2020-07-02
Language of the case: English
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: Ireland

summary of the relevant provisions of the WPPT set out at paragraph 29 et seq.
above, the obligation under article 4 to extend the right of equitable remuneration
to the nationals of other Contracting Parties is subject to the possibility of a
reservation under article 15(3). The Contracting Parties enjoy a wide measure of
discretion as to the type of reservation which they may enter. The right to a single
12
equitable remuneration under article 15(1) may (i) be applied in respect of certain
uses only; (ii) be limited in some other way; or (iii) not be applied at all.
44. The USA is a Contracting Party to the WPPT but has entered a reservation under
article 15(3) as follows.
"Pursuant to Article 15(3) of the WIPO Performances and Phonograms
Treaty, the United States will apply the provisions of Article 15(1) of the
WIPO Performances and Phonograms Treaty only in respect of certain acts
of broadcasting and communication to the public by digital means for which
a direct or indirect fee is charged for reception, and for other
retransmissions and digital phonorecord deliveries, as provided for under
United States law."
45. But for this reservation, the Irish State would have been obliged under the WPPT
to afford national treatment to US nationals. A US producer would be entitled to
copyright protection on the basis of either (i) their being a US domicile or resident
(the combined effect of section 183 of the CRRA 2000 and the Copyright
(Foreign Countries) Order 1996), or (ii) the sound recording having been first
published in the USA (section 184 of the CRRA 2000). In order for a US
performer to be entitled to copyright protection, it would have been necessary for
the Minister to make a designation order under section 289 in favour of the USA.
(A US performer does not meet the existing qualifying criteria under section 287
and 288 for the obvious reason that the USA is not an EEA country).
46. Of course, the fact that the USA has entered a reservation under article 15(3) has
the consequence that the Irish State is relieved of the obligation to extend national
treatment to US nationals. However, the actual effect of the CRRA 2000 is that
US producers will, in many instances, qualify for copyright protection, whereas
US performers will usually not qualify. This difference in treatment occurs
because a US producer can avail of the "first publication" criteria under section
184 to qualify for copyright protection, whereas a US performer cannot. The
upshot of all of this is that in the case of some sound recordings involving US
producers and US performers, the entirety of the licence fee payable under section
38, i.e. the equitable remuneration, accrues for the sole benefit ofthe producer.
47. The referring court is seeking a ruling from the Court of Justice as to whether this
asymmetric treatment of producers and performers represents a legitimate
response to an article 15(3) reservation.
13
6. QUESTIONS REFERRED FOR A PRELIMINARY RULING
1. Is the obligation on a national court to interpret the Directive 2006/115 on
rental right and lending right and on certain rights related to copyright in the
field of intellectual property ("the Directive") in the light of the purpose and
objective of the Rome Convention and/or the WPPT confined to concepts
which are expressly referenced in the Directive, or does it, alternatively,
extend to concepts which are only to be found in the two international
agreements? In particular, to what extent must Article 8 of the Directive be
interpreted in light of the requirement for "national treatment" under Article
4 of the WPPT?
2. Does a Member State have discretion to prescribe criteria for determining
which performers qualify as "relevant performers" under Article 8 of the
Directive? In particular, can a Member State restrict the right to share in
equitable remuneration to circumstances where either (i) the performance
takes place in a European Economic Area ("EEA") country, or (ii) the
performers are domiciles or residents of an EEA country?
3. What discretion does a Member State enjoy in responding to a reservation
entered by another Contracting Party under article 15(3) of the WPPT? In
particular, is the Member State required to mirror precisely the terms ofthe
reservation entered by the other Contracting Party? Is a Contracting Party
required not to apply the 30-day rule in Article 5 of the Rome Convention
to the extent that it may result in a producer from the reserving party
receiving remuneration under Article 15(1) but not the performers of the
same recording receiving remuneration? Alternatively, is the responding
party entitled to provide rights to the nationals of the reserving party on a
more generous basis than the reserving party has done, i.e. can the
responding party provide rights which are not reciprocated by the reserving
party?
4. Is it permissible in any circumstances to confine the right to equitable
remuneration to the producers of a sound recording, Le. to deny the right to
the performers whose performances have been fixed in that sound
recording?
Dated 20 March 2019.
Mr Justice Garrett Simons
APPENDIX
Judgment of the High Court delivered on 11 January 2019.