62019CJ0265_RES
Case C‑265/19
Recorded Artists Actors Performers Ltd
v
Attorney General and Others
(Request for a preliminary ruling from the High Court (Ireland))
Judgment of the Court (Grand Chamber), 8 September 2020
(Reference for a preliminary ruling – Intellectual property – Rights related to copyright – Directive 2006/115/EC – Article 8(2) – Use of phonograms in the European Union – Right of the performers to equitable remuneration shared with the phonogram producers – Applicability to nationals of third States – Performances and Phonograms Treaty – Articles 4 and 15 – Reservations notified by third States – Limitations of the right to equitable remuneration that may, on the basis of reciprocity, follow, in the European Union, for nationals of third States from those reservations – Article 17(2) and Article 52(1) of the Charter of Fundamental Rights of the European Union – Fundamental right to the protection of intellectual property – Requirement that any limitation must be provided for by law, respect the essence of the fundamental right and be proportionate – Division between the European Union and the Member States of competences to set those limitations – Division of competences in relations with third States – Article 3(2) TFEU – Exclusive competence of the European Union)
Approximation of laws – Copyright and related rights – Directive 2006/115 – Use of phonograms in the European Union – Right of the performers to a single equitable remuneration shared with the phonogram producers – Application solely to nationals of the Member States of the European Economic Area – Not permissible
(World Intellectual Property Organisation Performances and Phonograms Treaty, Art. 15(1); European Parliament and Council Directive 2006/115, Art. 8(2))
(see paragraphs 54-61, 68, 75, operative part 1)
Approximation of laws – Copyright and related rights – Directive 2006/115 – Use of phonograms in the European Union – Right of the performers to a single equitable remuneration shared with the phonogram producers – Applicability to nationals of third States – Applicability to nationals of the contracting parties to the World Intellectual Property Organisation Performances and Phonograms Treaty – National treatment
(World Intellectual Property Organisation Performances and Phonograms Treaty, Arts 4(1) and 15(1); European Parliament and Council Directive 2006/115, Art. 8(2))
(see paragraphs 62-67)
Approximation of laws – Copyright and related rights – Directive 2006/115 – Use of phonograms in the European Union – Right of the performers to a single equitable remuneration shared with the phonogram producers – Reservations notified by third States – Principle of reciprocity – Need to safeguard fair conditions of involvement in the recorded music business – Objective in the public interest – Limitation of the right to a single equitable remuneration – Conditions – Exclusive competence of the European Union
(World Intellectual Property Organisation Performances and Phonograms Treaty, Art. 15(1) and (3); Art. 3(2) TFEU; Charter of Fundamental Rights of the European Union, Arts 17(2) and 52(1); European Parliament and Council Directive 2006/115, Art. 8(2))
(see paragraphs 78-91, operative part 2)
Approximation of laws – Copyright and related rights – Directive 2006/115 – Use of phonograms in the European Union – Right of the performers to a single equitable remuneration shared with the phonogram producers – Sharing of the remuneration between the producer and the performer – Remuneration of the producer alone, to the exclusion of the performer – Not permissible
(European Parliament and Council Directive 2006/115, Art. 8(2))
(see paragraphs 93-96, operative part 3)
Résumé
Recorded Artists Actors Performers Ltd (RAAP) is a collective management organisation for performers, whereas Phonographic Performance (Ireland) Ltd (PPI) is a collective management organisation for phonogram producers. Those undertakings entered into an agreement which stipulates how fees payable in Ireland for the playing in public – in bars and other publicly accessible places – or the broadcasting of recorded music must, after being paid by the users to PPI, be shared with the performers and, for that purpose, be paid on in part by PPI to RAAP. They are in disagreement in relation to the operation of that agreement as regards fees paid to PPI where the music was performed by a person who is neither a national nor a resident of a Member State of the European Economic Area (EEA). RAAP takes the view that all the fees payable must be shared, without having regard to the performer’s nationality and residence. If RAAP’s position were followed, performers from third States would be paid in Ireland in any event although, according to PPI, which relies in this regard on Irish law, that cannot be the case where Irish performers do not receive equitable remuneration in third States.
In its judgment in Recorded Artists Actors Performers (C‑265/19), delivered on 8 September 2020, the Court, sitting as the Grand Chamber, held that, where phonograms are used in the European Union, Directive 2006/115 (
1
) precludes a Member State from excluding from the performers entitled to a single equitable remuneration performers who are nationals of States outside the EEA. In addition, the Court explained that reservations notified by third States pursuant to the World Intellectual Property Organisation (WIPO) Performances and Phonograms Treaty (WPPT) (
2
) do not in themselves limit the right of those performers from third States to a single equitable remuneration in the European Union. Although such limitations may be introduced by the EU legislature, provided that they are consistent with the right to intellectual property, which is protected by Article 17(2) of the Charter of Fundamental Rights of the European Union (‘the Charter’), Directive 2006/115 does not contain such a limitation and therefore precludes a Member State from limiting the right to a single equitable remuneration in respect of performers and producers who are nationals of third States. Furthermore, the Court stated that Directive 2006/115 also precludes only the producer of the phonogram concerned receiving remuneration, without sharing it with the performer who has contributed to that phonogram.
The Court stated, first, that the right to a single equitable remuneration ensures the application of Article 15(1) of the WPPT (
3
) in EU law and cannot be limited by the national legislature solely to nationals of the EEA Member States.
In that regard, the Court stated that Article 8(2) of Directive 2006/115, which confers within the framework of rights related to copyright a right that is compensatory in nature, lays down an obligation to ensure remuneration that is equitable and shared between the phonogram producer and the performer. That obligation applies where the use of the phonogram or of a reproduction thereof takes place in the European Union. The directive lays down no condition under which the performer or phonogram producer should be a national of an EEA Member State or any other condition requiring a connection to EEA territory, such as domicile, residence or the place where the creative or artistic work is carried out.
On the contrary, according to the Court, it follows from the context and objectives of Directive 2006/115 and the primacy of international agreements concluded by the European Union that Article 8(2) of the directive must be interpreted, as far as possible, in a manner consistent with the WPPT. The Court pointed out in that regard that that international agreement, which forms an integral part of the EU legal order, in principle obliges the European Union and its Member States to grant the right to a single equitable remuneration also to nationals of other contracting parties to the WPPT. That obligation arises from Article 15(1) of the WPPT and from the national treatment guaranteed by Article 4 of the WPPT and Article 4 of the Rome Convention. (
4
)
Second, the Court explained that reservations notified by third States under Article 15(3) of the WPPT do not in themselves lead in the European Union to limitations of the right to a single equitable remuneration in respect of nationals of those third States. It is true that the Court stated that, in the light of the principle of reciprocity enshrined in the Vienna Convention, (
5
) the European Union and its Member States are not required to grant the right to a single equitable remuneration without limitation. According to the Court, the need to safeguard fair conditions of involvement in recorded music is capable of justifying a limitation of the right to a single equitable remuneration.
However, that right related to copyright constitutes an intellectual property right protected by Article 17(2) of the Charter. Consequently, any limitation on the exercise of that right must be provided for by law clearly and precisely, in accordance with Article 52 of the Charter. According to the Court, the mere existence of a reservation under the WPPT does not fulfil that requirement. Therefore, it is for the EU legislature alone, which has exclusive external competence in the matter, to decide on such a limitation.
Third, the Court held that it follows from the very wording of Article 8(2) of Directive 2006/115 that both performers and phonogram producers are entitled to a single equitable remuneration, as that remuneration is ‘shared’ between them. Therefore, that provision precludes the law of a Member State from excluding the performer from a single equitable remuneration.
(
1
)	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 (OJ 2006 L 376, p. 28).
(
2
)	Under Article 15(3) of the WPPT.
(
3
)	Article 15(1) of the WPPT provides that performers and producers of phonograms are to enjoy the right to a single equitable remuneration on the broadcasting or any communication to the public of phonograms published for commercial purposes.
(
4
)	International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations, concluded in Rome on 26 October 1961.
(
5
)	Vienna Convention on the Law of Treaties of 23 May 1969 (United Nations Treaty Series, vol. 1155, p. 331).