Atresmedia Corporación de Medios de Comunicación S.A. v Asociación de Gestión de Derechos Intelectuales (AGEDI) and Artistas e Intérpretes o Ejecutantes, Sociedad de Gestión de España (AIE).
Date: 2020-11-18
29


As the Court has already pointed out, that remuneration represents the consideration for the use of a commercial phonogram during such a broadcast or communication to the public (see, to that effect, judgment of 6 February 2003, SENA, C‑245/00, EU:C:2003:68, paragraph 37, and of 14 July 2005, Lagardère Active Broadcast, C‑192/04, EU:C:2005:475, paragraph 50).
30


Those provisions confer on the persons covered by them a right that is compensatory in nature, triggered by the broadcasting or communication to the public of the performance of the work fixed on a phonogram published for commercial purposes, or on a reproduction of such a phonogram (see, to that effect, judgment of 8 September 2020, Recorded Artists Actors Performers, C‑265/19, EU:C:2020:677, paragraph 54 and the case-law cited).
34


In that regard, it should be borne in mind that the provisions of Directive 92/100 and Directive 2006/115 must be interpreted in the light of international law, and in particular of the treaty law which those instruments are specifically intended to implement, as is expressly referred to in the 10th recital of Directive 92/100 and in recital 7 of Directive 2006/115 (see, to that effect, judgment of 8 September 2020, Recorded Artists Actors Performers, C‑265/19, EU:C:2020:677, paragraph 51 and the case-law cited).
36


Admittedly, the provisions of that convention do not form part of the EU legal order, since the European Union is not a party to that convention. However, the Court has already pointed out that the Rome Convention has indirect effects within the European Union (see, to that effect, judgment of 15 March 2012, SCF, C‑135/10, EU:C:2012:140, paragraphs 42 and 50).
38


It should, moreover, be borne in mind that the concept of ‘phonogram’ in Article 8(2) of Directive 2006/115, which replaced without amendment Article 8(2) of Directive 92/100, must be interpreted in accordance with the equivalent concept contained in the WPPT (see, to that effect, judgments of 15 March 2012, Phonographic Performance (Ireland), C‑162/10, EU:C:2012:141, paragraph 58, and of 8 September 2020, Recorded Artists Actors Performers, C‑265/19, EU:C:2020:677, paragraph 62), as the provisions of that treaty form an integral part of the EU legal order and are, therefore, applicable in the European Union (see, to that effect, judgment of 15 March 2012, SCF, C‑135/10, EU:C:2012:140, paragraphs 38 and 39).
40


In that regard, it follows from the ‘Guide to the Copyright and Related Rights Treaties Administered by WIPO’, an interpretative document drawn up by WIPO which, without being legally binding, nevertheless assists in interpreting the WPPT (see, by analogy, as regards the Guide to the Berne Convention for the Protection of Literary and Artistic Works (Paris Act of 24 July 1971), in the version resulting from the amendment of 28 September 1979, judgment of 4 October 2011, Football Association Premier League and Others, C‑403/08 and C‑429/08, EU:C:2011:631, paragraph 201 and the case-law cited), that the WPPT has updated the definition of ‘phonogram’ in Article 3(b) of the Rome Convention, with ‘the effect … that, in a case where an audiovisual fixation does not qualify as a work, a fixation of the sounds of a performance or of other sounds, or of a representation of sounds, incorporated in such an audiovisual fixation, is to be regarded as a “phonogram”’, as the Advocate General also noted, in essence, in point 50 of his Opinion.
54


It should be added that such an interpretation does not disregard the objectives of Directive 92/100 or Directive 2006/115, set out respectively in the seventh recital of Directive 92/100 and in recital 5 of Directive 2006/115; those objectives seek to ensure the continuity of the creative and artistic work of authors and performers by providing for harmonised legal protection which guarantees the possibility of receiving appropriate income and recouping investments, and thus of enabling a proper balance to be achieved between the interests of performers and phonogram producers in obtaining remuneration for the broadcast of a particular phonogram, and the interests of third parties in being able to broadcast that phonogram or communicate it to the public on terms that are reasonable (see, to that effect, judgment of 6 February 2003, SENA, C‑245/00, EU:C:2003:68, paragraph 36).