Martin Luksan v Petrus van der Let.
Date: 2012-02-09
43. It is apparent from recital 20 in the preamble that Directive 2001/29 is based on the principles and rules already laid down in the directives in force in this area, inter alia Directive 92/100 on rental right and lending right (now Directive 2006/115) and Directive 93/98 harmonising the term of protection of copyright (now Directive 2006/116). It is stated that Directive 2001/29 develops those principles and rules and places them in the context of the information society. Accordingly, the provisions of Directive 2001/29 should be without prejudice to the provisions of those two directives, unless otherwise provided in Directive 2001/29 (see, to this effect, Joined Cases C‑403/08 and C‑429/08 Football Association Premier League and Others  [2011] ECR I‑9083, paragraphs 187 and 188).
53. Thus, the provisions referred to in the previous three paragraphs allot, by way of original grant, to the principal director in his capacity as author the rights to exploit a cinematographic work that are at issue in the main proceedings.
59. It should also be observed that the European Union, which is not a party to the Berne Convention, is nevertheless obliged, under Article 1(4) of the WIPO Copyright Treaty, to which it is a party, which forms part of its legal order and which Directive 2001/29 is intended to implement, to comply with Articles 1 to 21 of the Berne Convention (see, to this effect, Football Association Premier League and Others , paragraph 189 and the case-law cited). Consequently, the European Union is required to comply inter alia with Article 14 bis of the Berne Convention.
61. In this regard, it should be recalled first of all that the purpose of the first paragraph of Article 351 TFEU is to make clear, in accordance with the principles of international law, that application of the Treaty does not affect the commitment of the Member State concerned to respect the rights of third countries under an agreement preceding its accession and to comply with its corresponding obligations (see Case C‑324/93 Evans Medical and Macfarlan Smith  [1995] ECR I‑563, paragraph 27, and Case C‑124/95 Centro-Com  [1997] ECR I‑81, paragraph 56).
62. However, when such an agreement allows, but does not require, a Member State to adopt a measure which appears to be contrary to European Union law, the Member State must refrain from adopting such a measure (see, to this effect, Evans Medical and Macfarlan Smith , paragraph 32, and Centro-Com , paragraph 60).
64. In providing that the principal director of a cinematographic work is to be considered its author or one of its authors, the European Union legislature exercised the competence of the European Union in the field of intellectual property. In those circumstances, the Member States are no longer competent to adopt provisions compromising that European Union legislation. Accordingly, they can no longer rely on the power granted by Article 14 bis  of the Berne Convention.
83. Thus, recital 10 in the preamble to Directive 2001/29 confirms that the investment required to produce products such as films or multimedia products is considerable. Adequate legal protection of intellectual property rights is therefore necessary in order to provide the opportunity for satisfactory returns on this investment (see also, to this effect, Case C‑61/05 Commission  v Portugal  [2006] ECR I‑6779, paragraph 27).
103. It is true that in Directives 92/100 and 2006/115 the European Union legislature used the term ‘remuneration’ instead of the term ‘compensation’ employed in Directive 2001/29. However, that concept of ‘remuneration’ is also designed to establish recompense for authors, since it arises in order to compensate for harm to the latter (see, to this effect, Case C‑271/10 VEWA  [2011] ECR I‑5815, paragraph 29).
105. Here, with regard to the right to the fair compensation payable to authors under the private copying exception, it does not follow from any provision of Directive 2001/29 that the European Union legislature envisaged the possibility of that right being waived by the person entitled to it.
106. Furthermore, the Court has already held that, unless it is to be deprived of all practical effect, Article 5(2)(b) of Directive 2001/29 imposes on a Member State which has introduced the private copying exception into its national law an obligation to achieve a certain result, in the sense that that State must ensure, within the framework of its powers, that the fair compensation intended to compensate the rightholders harmed for the prejudice sustained is actually recovered (see, to this effect, Case C‑462/09 Stichting de Thuiskopie  [2011] ECR I‑5331, paragraph 34). Imposition on the Member States of such an obligation to achieve the result of recovery of the fair compensation for the rightholders proves conceptually irreconcilable with the possibility for a rightholder to waive that fair compensation.