The expression “by means of their own facilities” must be interpreted within the framework of European Union law

COPYRIGHT
 
Copyright Directive makes aspects of Berne Convention part of European Union law.

"31. That being so, by adopting Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society, the European Union legislature is deemed to have exercised the competence previously devolved on the Member States in the field of intellectual property. Within the scope of that directive, the European Union must be regarded as having taken the place of the Member States, which are no longer competent to implement the relevant stipulations of the Berne Convention (see, to that effect, Luksan, paragraph 64)."

The expression “by means of their own facilities” must be interpreted within the framework of European Union law.

"37. In the light of the foregoing considerations, the answer to the first question is that the expression ‘by means of their own facilities’ in Article 5(2)(d) of Directive 2001/29 must be given an independent and uniform interpretation within the framework of European Union law."

By means of their own facilities also includes third parties acting on behalf of or under the responsibility of broadcasting organisation.

"58. In the light of the foregoing, the answer to the second question is that Article 5(2)(d) of Directive 2001/29, read in the light of recital 41 in the preamble to that directive, must be interpreted as meaning that a broadcasting organisation’s own facilities include the facilities of any third party acting on behalf of or under the responsibility of that organisation."

Broadcasting organisation is required to pay compensation for any adverse effects of the acts and omissions of such third party.

"67. Regard being had to the foregoing considerations, the answer to the third question referred is that, for the purposes of ascertaining whether a recording made by a broadcasting organisation, for its own broadcasts, with the facilities of a third party, is covered by the exception laid down in Article 5(2)(d) of Directive 2001/29 in respect of ephemeral recordings, it is for the national court to assess whether, in the circumstances of the dispute in the main proceedings, that party may be regarded as acting specifically ‘on behalf of’ the broadcasting organisation or, at the very least, ‘under the responsibility’ of that organisation. As regards whether that party may be regarded as acting ‘under the responsibility’ of the broadcasting organisation, it is essential that, vis-à-vis other persons, among others the authors who may be harmed by an unlawful recording of their works, the broadcasting organisation is required to pay compensation for any adverse effects of the acts and omissions of the third party, such as a legally independent external television production company, connected with the recording in question, as if the broadcasting organisation had itself carried out those acts and made those omissions."

IPPT20120426, CJEU, TV2 Denmark v NCB

C-510/10 - ECLI:EU:C:2012:244