62005CC0169_EN
Opinion of the Advocate-General
Opinion of the Advocate-General
I – Introduction
1. In the sphere of cable retransmission, Council Directive 93/83/EEC (2) requires the collective administration of copyright and related rights, (3) with a view to simplifying the exercise of such rights, so introducing certainty.
To that end, Article 9(2) thereof sets out the criteria for determining the organisation to which that task is entrusted, when a rightholder has made no specific attribution of it.
2. The Belgian Cour de cassation (Court of Cassation) is uncertain about the scope of the attribution in the last case; the court finds it unclear whether that scope is confined to the administration of the economic interests of the persons represented or whether it also includes the power to authorise or refuse to authorise transmission of the protected work.
3.
In addition, the specific subject-matter of the main proceedings is the right to audiovisual exploitation of the performances of artists and performers which, as I will explain below, is deemed under Belgian law to be assigned to the producers.
This gives rise to the question whether, in accordance with Directive 93/83, the powers linked to that right must also be exercised collectively.
II – The legal framework
A – Community law
4. I have already pointed out that Directive 93/83 is intended to create legal certainty in the sphere of copyright and related rights pertaining to broadcasting within the Community, in particular by satellite and cable, (4) by overcoming certain differences in national laws (fifth and eighth recitals in the preamble).
The want of legislative harmonisation makes it impossible for operators to be sure that they have actually acquired all the rights concerned, for which reason the system is designed on the basis of the principle of contractual assignment and the collective exercise of the powers inherent in intellectual property (10t, 27 th
and 28th recitals in the preamble).
5. Article 1(3) of the Directive defines ‘cable retransmission’ as ‘the simultaneous, unaltered and unabridged retransmission by a cable or microwave system for reception by the public of an initial transmission from another Member State, by wire or over the air, including that by satellite, of television or radio programmes intended for reception by the public’.
6. Chapter III, headed ‘Cable retransmission’, begins with Article 8, paragraph 1 of which requires the Member States to ensure that, when programmes from other Member States are retransmitted by cable in their territory, the applicable intellectual property rights are observed and that such retransmission takes place on the basis of individual or collective agreements with operators in the sector.
7. In accordance with the objectives set out in the preamble to the Directive, Article 9(1) provides that ‘the right of copyright owners and holders of related rights to grant or refuse authorisation to a cable operator for a cable retransmission may be exercised only through a collecting society’, which last is defined in Article 1(4) as ‘any organisation which manages or administers copyright or rights related to copyright as its sole purpose or as one of its main purposes’.
8. Under Article 9(2), where a rightholder has not transferred the management of his rights to a collecting society, the society which manages rights of the same category is deemed to have been ‘mandated’ (5) to manage his rights.
If there is more than one such collecting society, the rightholder is free to choose whichever one he prefers. ‘A rightholder referred to in this paragraph shall have the same rights and obligations resulting from the agreement between the cable operator and the collecting society which is deemed to be mandated to manage his rights as the rightholders who have mandated that collecting society …’.
9. Article 10 provides that Article 9 does not apply to the rights of a broadcasting organisation in respect of its own transmission, irrespective of whether the rights concerned are its own or have been transferred to it by authors or by the holders of related rights.
B – Belgian legislation
10. Article 51 of the Law of 30 June 1994 (6) provides that authors and holders of related rights have an exclusive right to authorise the cable retransmission of their works. Under the first paragraph of Article 36, unless it is otherwise agreed, artists and performers assign to the producer the exclusive right to audiovisual exploitation of their performances.
11. The first two paragraphs of Article 53 transpose verbatim Article 9(1) and (2) of Directive 93/83 into Belgian law.
III – The facts of the main proceedings and the question referred for a preliminary ruling
12. Uradex SCRL, an organisation which manages the rights of artists and performers, applied to the Tribunal de Première Instance de Bruxelles (Court of First Instance, Brussels), for an order for interim relief against the Union Professionnelle de la Radio et de la Télédistribution (‘RTD’) and the Société Intercommunale pour la Diffusion de la Télévision (‘BRUTELE’), for retransmitting by cable without its permission.
13. Its claims having been dismissed, Uradex SCRL lodged an appeal which the Cour d’appel (Court of Appeal), Brussels allowed in part by judgment of 25 June 1998, holding that collecting societies have the right to authorise or prohibit cable retransmission in respect of all types of performance, provided that the management of that right has been committed to them but, if it has not been entrusted to them, in view of the essentially fiduciary nature of their task, their role is restricted to collecting remuneration and passing it on to the rightholder.
14. The Cour d’appel added that, in the case of audiovisual productions, a body of that kind possesses the power in question only if the artists or performers continue to hold those rights.
Since the first paragraph of Article 36 of the Law of 30 June 1994 provides that the rights of those persons are assumed to be assigned to the producer, Uradex may not manage those rights if it does not prove the existence of agreements which overturn that presumption or does not prove that it acts in the name of the producers themselves, facts that have not in this case been established.
15. On those grounds, the Cour d’appel made an order against BRUTELE for retransmitting, without Uradex’s authorisation, the non-audiovisual works of performers whom Uradex expressly represented, and dismissed the remainder of the appeal.
16. Uradex appealed on a point of law, claiming that it was apparent from Article 53 of the Belgian Law and, therefore, from Article 9 of Directive 93/83 that, in the absence of an express mandate, the collecting society deemed to have been given a mandate is empowered also to decide on the marketing of the rights, it being irrelevant, in the case of radio and television performances, that those rights may have been transferred to third parties.
17. The dispute being set out in such terms, the Cour de cassation stayed proceedings and referred the following question to the Court of Justice for a preliminary ruling:
‘Must Article 9(2) of Council Directive 93/83/EEC … be interpreted as meaning that, where a collecting society is deemed to be mandated to manage the rights of a copyright owner or holder of related rights who has not transferred the management of his rights to a collecting society, that society does not have the power to exercise that rightholder’s right to grant or refuse authorisation to a cable operator for cable retransmission, since it is mandated only to manage the pecuniary aspects of that rightholder’s rights?’
IV – The procedure before the Court of Justice
18. Written observations were submitted, within the period laid down in Article 20 of the EC Statute of the Court of Justice, by the parties to the main proceedings, the Commission, and the Swedish and Italian Governments.
19. At the hearing held on 19 January 2006, oral argument was presented by the Commission and by the representatives of Uradex, RTD and BRUTELE.
V – Analysis of the question referred for a preliminary ruling
A – The exercise of copyright and related rights
20. The characteristic feature of these rights, traditionally grouped under the heading of intellectual property, (7) is that they confer on the creator of a work, which is the product of that person’s mind, the power to control the exploitation (8) of that work, which includes the moral element of the right and also an economic element, derived from the receipt of remuneration for the exploitation of the work. (9)
21. Unless there is agreement to the contrary, anyone who wishes to use a protected work for broadcasting to the public must seek and obtain the authorisation of the rightholder, which must be set out in a licence agreement, exclusive or otherwise, capable of authorising one, several or all kinds of conceivable use.
Traditionally, therefore, such rights are relied upon on an individual basis.
22. Nevertheless, despite their clear individual nature, such rights have since time immemorial been exercised collectively through ‘societies of authors’ or, in more recent parlance, ‘collecting societies’.
In situations in which separate management cannot be contemplated because of the number and possible methods of reproduction, that form of exploitation has become widespread, guaranteeing remuneration for the rightholders.
23. The collective management model, which has been extended to connected, neighbouring or related rights, including the rights of artists and performers (10) at issue in the main proceedings, is designed to ensure that artists have control of what happens to their works, something that is not always feasible on an individual basis.
The management body manages, monitors, collects and distributes the payment of royalties on behalf of a group.
24. It was impossible that the Community legal order should ignore that sector. Its economic importance (11) affects the creation of a single market (12) by stimulating investment, growth and employment; furthermore, its protection serves other purposes, such as the fostering of cultural creativity, identity and diversity, which is not only an objective but also a tool for the development of Europe.
25. Both those aspects emerge in the acquis communautaire
in this domain.
B – The two stages in the Community har monisation of intellectual property
26. Attention has been drawn (13) to the fact that, since time immemorial, copyright, recognition of which owes much to the invention of printing, (14) has been closely linked to technical progress.
That connection is also evident in the Community process of homogenisation, prompted by successive technological revolutions (15) affecting the so-called information society, in which two stages may be discerned. (16)
27. The first stage, which was undertaken in the 1990s and inspired by the Green Paper on copyright and the challenge of technology, (17) comprises five directives, including that which is the subject-matter of this reference for a preliminary ruling, (18) the aim of which is to respond to the impact of cable and satellite television (19) and to continuous advances in information technology. (20)
28. The second stage started with Directive 2001/29, which was inspired by the advance of digital technology and interactive systems.
There followed Directive 2001/84/EC which concerns the right of the author of a work of art to share in the profits on the sale of the work. (21) The second stage is, for the moment, completed by Directive 2004/48/EC on the enforcement of intellectual property rights. (22)
29. Both aspects of copyright (the economic and the innovative) that concern the Community system are to be found in that development.
While the first group of directives responds to the need to remove the impediments to industry and the free movement of goods and services raised by a narrowly domestic view of those rights, (23) the directives in the second group are intended to afford harmonised protection for the creators of intellectual property. (24)
C – Directive 93/83
30. Directive 93/83 forms part of that initial stage and deals, from the point of view of intellectual property, with the effects of cross-border television broadcasts by satellite and cable. (25)
31. The latter mode of broadcasting gave rise to the uncertainty afflicting operators which confined themselves to the simultaneous broadcasting, without changes, to a number of countries of television programmes the content of which was fixed in advance.
To require them to obtain the consent of each and every holder of the rights concerned proved an insuperable task.
Furthermore, in a cross-border context, that solution assumed requests for permission must be made in accordance with different national systems.
In such circumstances, to maintain a system of individual consent could create a serious hindrance to the smooth running of the internal market in broadcasting.
32. It was therefore necessary to settle the legislation pursuant to which operators engaged in the process of broadcasting must obtain the consent of the holders of rights in the works they seek to market, paying those persons the corresponding remuneration.
In other words, the objective, as stated in the preamble to the Directive, was to remove the legal uncertainty caused by differences between national rules of copyright by preserving that right in a harmonised form on the basis of contractual agreements. (26)
33. There were two options in that respect: compulsory licences (27) or collective management, (28) the Community legislature preferring the second, more favourable to the rights of authors.
That form of exploitation was less prejudicial to the autonomy of rightholders and was aimed at achieving a balance between the exercise of exclusive rights and the confidence of broadcasting organisations which have be sure that they have acquired all the rights pertaining to a retransmission. (29)
34. For the reasons stated, Directive 93/83 protects copyright and related rights by providing for contracts between rightholders and broadcasting organisations (Article 8), and by requiring collective management in all cases (Article 9(1)).
A desire to prevent any omissions is the basis for Article 9(2), under which the management of the rights of non-members is assigned to the relevant collecting society, thereby assuring an operator that the whole repertoire of rights has been obtained.
35. Those explanations having been supplied, it is now possible to study the Gordian knot of this reference for a preliminary ruling, elucidating whether, in such a situation, the society’s powers of representation extend to the rights inherent in intellectual property, including the right to authorise retransmission, or whether they are confined to strictly economic aspects.
D – Extension of collective management to rightholders who are not members
36. In my view, right is on the side of those who, like the Commission, the Swedish and Italian Governments, and Uradex, argue that the powers conferred by law also include the power to authorise retransmission. Any other interpretation would frustrate the aim of the provision.
37. In fact, if the principal objective of Directive 93/83 is to prevent the activities of cable operators from being hampered by difficulties caused by the independent acquisition of rights, ensuring that rightholders receive equitable remuneration, it is unarguable that that commission includes the decision to authorise exploitation of an intellectual work.
There are various arguments in support of that assertion.
38. First of all, the only method of confirming that an operator has acquired all the works included in a programme is to presume that the rightholders agree, explicitly or implicitly, to their being broadcast, a valid presumption if Article 9(2) of the Directive is construed as entrusting to the collecting society all the rights in question, without exception, beginning with the primary right, which is the exploitation of the intangible property to which the copyright relates.
39. The structure and wording of that provision suggest that this is so. Article 9(1) lays down the principle of collective management, so that the right ‘to grant or refuse authorisation to a cable operator for a cable retransmission may be exercised only through a collecting society’, while Article 9(2) sets out the criteria for determining that body, which is entrusted with the task with regard to those rightholders which have not made an express choice. (30) Furthermore, those rightholders have the same rights and obligations under the agreement between the audiovisual company and the collecting society as the rightholders who have made a choice.
If the objective is for the broadcasting organisation to respect the rights at issue, no other interpretation is possible.
40. In other words, it is clear from Article 9(1) that compulsory collective exploitation of rights is not confined to pecuniary aspects and, as the Swedish and Italian Governments emphasise, the meaning of the word ‘rights’ in Article 9(2) does not differ from that given to the word in Article 9(1).
41. It would, moreover, be paradoxical to provide for the tacit conferring of powers with regard to economic compensation without doing likewise in relation to its prius : the authorisation to retransmit for which that payment is the consideration.
42. Lastly, if rightholders who have not entrusted their rights to a particular collecting society could object individually to a cable retransmission, citing reasons other than the ones covered by collective agreement, or could give their consent without regard to collectively agreed conditions, legal uncertainty would continue to prevail in the sector, depriving the Community provision of all practical effect.
E – The particular case of the assignment of the right to third parties
43. Collective management relates exclusively to cable retransmission rights and the appropriate remuneration, (31) but it does not affect rightholders’ other powers, such as the power of disposal, which remain untouched.
Accordingly, nothing prevents the assignment of such powers to third parties.
44. The 28th recital in the preamble to Directive 93/83 is as clear as day on that point, stipulating that harmonisation does not affect the ‘authorisation right’ but rather its exercise, from which it follows that the right may be assigned.
45. Now, if a transfer is made, the new rightholder is subrogated to the rights of the previous holder and occupies an identical position vis-à-vis the collecting society, with the result that the foregoing explanations are to be borne in mind.
Individual exercise of the right is permitted only if the assignee is the broadcasting organisation itself, a case provided for in Article 10 of Directive 93/83.
46. It is contrary to the basis of the European system for the possibility of transfer to be used as a means of eluding collective management.
Article 9 of the Directive does not use the terms authors, performers or producers but rather the term ‘owners and holders’ of copyright and related rights, it being irrelevant whether the power to dispose of such rights is primary, belonging to the author of the work or to the performer, or whether it is secondary, as a result of transmission.
47. The solution is identical if, as in Belgium, the producers of broadcasts become rightholders, because the legislature presumes, juris tantum, that artists and performers grant the exclusive right to exploit their performances to the producers, for the grounds on which Directive 93/83 is founded still subsist.
48. In the situation described, the problem shifts to the identification of the body called upon to exercise the rights in common, but it is for the national court to resolve that question by application of the national legislation transposing the Directive.
49. However, two hypotheses may be conjectured.
The starting point for the first is to regard the rights acquired by producers as the artists and performers’ own rights, authority to exercise them being conferred on the collecting society for that category of rights or, if there is more than one, on the collecting society provided for in the second subparagraph of Article 53(2) of the Law of 30 June 1994 which transposes Article 9(2) of Directive 93/83 into Belgian law.
The basis of the second hypothesis is that those rights are treated as being of the same nature as the rights of producers.
50. The result of the last option would be that a single broadcast involved several collecting societies (those of the producers in addition to those of the performers), but that runs counter to nothing in the Directive, for the Community legislature has chosen the collective exercise of the intellectual property rights involved in a cable television broadcast without requiring that there should be only one organisation.
In that case, several categories of rights would be concerned, each managed by different collecting societies, and the operator would be bound to contract with them all.
That outcome is not incompatible with the aims of Directive 93/83 since it provides a well-defined framework for cable operators, which are required to deal with a limited number of parties, and it ensures that the interests of the different groups of authors concerned – which, let it not be forgotten, may conflict – are in fact protected.
51. Those last observations exceed the scope of the doubts expressed by the referring court in the question submitted for a preliminary ruling, to which I suggest that the answer should be that, in accordance with Article 9(2) of Directive 93/83, a collecting society to which the collective management of intellectual property rights is tacitly transferred is empowered not only to deal with the economic aspects but also to decide on the marketing of those rights by cable television.
VI – Conclusion
52. In the light of the foregoing considerations, I propose that the Court of Justice answer the Belgian Cour de cassation as follows:
Article 9(2) 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 permits the body deemed to be entrusted with the task of managing the rights of those holders who have not made an express transfer to a particular organisation to consent to the exploitation of their works and performances.
(1) .
(2)  –	Directive 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; ‘the Directive’ or ‘Directive 93/83’).
(3)  –	Rights related to copyright are the rights of performers, phonogram and film producers, and broadcasting organisations. That definition is taken from Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (OJ 2001 L 167, p. 10).
(4)  –	The judgment in Case C-293/98 Egeda
[2000] ECR I-629 points out that the provisions of the directive concerning cable retransmission are different from those concerning satellite broadcasting (paragraph 23).
(5)  –	The word ‘mandatada’, used in the Spanish version of Directive 93/83, does not exist in that language. The correct term in Spanish is mandataria
(agent or representative), a person who represents, manages or performs one or more transactions, on behalf of another person, who is called the mandante
(principal or person conferring the power to act).
(6)  –	Moniteur belge
No 147 of 27 July 1994, p. 19297 (corrigendum, Moniteur belge
No 227 of 22 November 1994, p. 28832).
(7)  –	Chapter III, Title IV, Book II of the Spanish Civil Code, drafted at the end of the 19th century (it was published in the Gaceta de Madrid
on 25 July 1889), is entitled ‘On intellectual property’, reflecting a Spanish tradition embodied in the Law of 10 June 1847 on intellectual property, maintained in the Law of the same name of 10 January 1879 and upheld in the current Law of 11 November 1987, the consolidated text of which was approved by Royal Legislative Decree No 1/1996 of 12 April 1996 ( Boletín Oficial del Estado No 97 of 22 April 1996, pp. 14369 to 14396).
(8)  –	Article 8 et seq. of the Berne Convention for the Protection of Literary and Artistic Works of 9 September 1886, as revised in the Paris Act of 24 July 1971 and amended on 28 September 1979, governs copyright at international level.
(9)  –	The dual nature of that intangible property right was noted in the judgment in Joined Cases C‑92/92 and C-363/92 Phil Collins and Others
[1993] ECR I-5145, paragraph 20 of which identifies the specific objective of the right as being ‘to ensure the protection of the moral and economic rights of their holders. The protection of moral rights enables authors and performers, in particular, to object to any distortion, mutilation or other modification of a work which would be prejudicial to their honour or reputation. Copyright and related rights are also economic in nature, in that they confer the right to exploit commercially the marketing of the protected work, particularly in the form of licences granted in return for payment of royalties’. In the Opinion in Case C-360/00 Ricordi
[2002] ECR I-5089, I referred to the two dimensions – ‘fame and fortune’ – of copyright.
(10)  –	In particular, musical, theatrical and audiovisual works, which may be performed a great many times, are ideally suited to collective management.
(11)  –	According to the c ommunication from the Commission to the Council, the European Parliament and the European Economic and Social Committee on the management of Copyright and related rights in the internal market (text with EEA relevance) of
16 April 2004 (COM(2004) 261 final), the contribution to the economy of the European Union of the copyright-based industries exceeds 5% of gross national product (p. 2).
(12)  –	In Case 262/81 Coditel II
[1982] ECR 3381, the Court recognised that in certain circumstances copyright hampers the movement of goods and freedom of competition.
(13)  –	Marco Molina, J., ‘La armonización de las legislaciones sobre propiedad intelectual en las Directivas comunitarias’, Derecho privado europeo,
Colex, Madrid 2003, pp. 1009 to 1061.
(14)  –	Marco Molina, J., ‘Bases históricas y filosóficas y precedentes legislativos del derecho de autor’, Anuario de Derecho Civil, January/March 1994, pp. 121 to 208, states that, leaving aside any consideration of the individual interests of artists in ancient Greek and Roman times, the seeds of modern provisions governing their rights is found in printing rights.
(15)  –	In the judgment in Case C-192/04 Lagardère Active Broadcast
[2005] ECR I-7199, the Court recalled the influence of technological developments on Community copyright law (paragraphs 29 and 30).
(16)  –	It must be observed that Community law has dealt only marginally with copyright and related rights, leaving the essential aspects of their regulation to the Member States. That is the view expressed by the Commission at page 1 of the communication cited in footnote 11.
(17)  –	COM(88) 172 final, Brussels, June 1988, updated in a document entitled ‘Follow-up to the Green Paper – working programme of the Commission in the field of copyright and neighbouring rights’ (Brussels, 5 December 1990, COM(90) 584 final).
(18)  –	The others are Council Directive 91/250/EEC of 14 May 1991 on the legal protection of computer programs (OJ 1991 L 122, p. 42); 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 (OJ 1992 L 346, p. 61); Council Directive 93/98/EEC of 29 October 1993 harmonising the term of protection of copyright and certain related rights (OJ 1993 L 290, p. 9); and Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases (OJ 1996 L 77, p. 20).
(19)  –	A few years earlier, the Council had adopted 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), known as the ‘television without frontiers’ Directive.
(20)  –	The aforementioned Green Paper refers to the problems raised by the emergence of new technologies, including cable and satellite television, semiconductors, information technology, and new audiovisual recording techniques.
(21)  –	Directive of the European Parliament and of the Council of 27 September 2001 on the resale right for the benefit of the author of an original work of art (OJ 2001 L 272, p. 32).
(22)  –	Directive of the European Parliament and of the Council of 29 April 2004 (OJ 2004 L 157, p. 45.
Corrigendum, OJ 2004 L 195, p. 16).
(23)  –	The aforementioned Green Paper states that the attention of the Commission was drawn to the obstacles to inter-Community trade in goods and services in many fields which resulted from copyright.
(24)  –	In that regard, the fourth recital in the preamble to Directive 2001/29 and the second, third and tenth recitals in the preamble to Directive 2004/48 are most instructive.
(25)  –	Deliyanni, E., ‘Contenu et application de la directive 93/83 du Conseil, relative à la coordination de certaines règles du droit d’auteur et des droits voisins, applicables à la radiodiffusion par satellite et à la retransmission par câble’, Derecho europeo del audiovisual: actas del congreso organizado por la Asociación Europea de Derecho Audiovisual (Sevilla, octubre 1996), Volume I, Madrid, 1997, pp 675 to 709, stresses the need to coordinate two spatially distinct phenomena: satellite and cable transmissions at international level and the protection of copyright, which has a purely national dimension.
(26)  –	That is the view expressed in the r eport from the European Commission on the application of Council
Directive 93/83/EEC on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission
(Brussels, 26 July 2002, COM (2002) 430 final, pp. 3 and 4).
(27)  –	The public authorities grant authorisation to exploit a work, stipulating the terms of use and the applicable remuneration, and the rightholder is not permitted to object.
(28)  –	Both are covered by Article 11 bis of the Berne Convention, paragraph 1 of which provides that authors enjoy the exclusive right of authorising the broadcasting and rebroadcasting of their work, while paragraph 2 provides that determination of the conditions for the exercise of that right is a matter for national legislation.
(29)
–	See the report from the Commission, cited in footnote 26, and Deliyanni, E., op. cit., p. 704.
(30)  –	Article 9(2) resolves the situation only if there is a single organisation for rights of the same category since, where there are several, it is on the one chosen by the rightholder that powers are deemed to be conferred.
However, as a matter of principle, those rightholders not having chosen any society at all, it is hardly to be expected that they should break their silence in order to confer the representation of their interests to one of those societies.
(31)  –	Deliyanni, E., op. cit., p. 706, states that the duty to have recourse to a collecting society does not mean that an author is obliged to exercise all the aspects of his rights collectively but merely that, if he does not do so, he may assert only the rights referred to in Article 9(2).