The Copyright Directive must be interpreted as not precluding national legislation which establishes, as regards the exploitation of audiovisual archives by a body set up for that purpose, a rebuttable presumption that the performer has authorised the fixation and exploitation of his performances, where that performer is involved in the recording of an audiovisual work so that it may be broadcast: the protection of the performer also extends to the exploitation of audiovisual archives, the performer’s prior authorization is required for any act of reproduction or making available to the public of the fixations of their performances, provisions on consent for any act of reproduction or making available to the public also allow the consent to be expressed implicitly, when a performer who is himself involved in the making of an audiovisual work so that it may be broadcast by national broadcasting companies, and who is thus present at the place where such a work is recorded for those purposes, first, is aware of the envisaged use of his performance and gives his performance for the purposes of such use, it is possible to take the view, in the absence of evidence to the contrary, that he has, as a result of that involvement, authorised the fixation of that performance and its exploitation.
The reference for a preliminary ruling comes from the French court in a dispute between the Association for the Collection and Distribution of the Rights of Performers of Music and Dance (Spedidam) and the sons of a musician on the one hand and the National Audiovisual Institute (INA) on the other hand, concerning an alleged infringement by the INA of the rights of performers whose sons are holders. Under French law, there is a rebuttable presumption that the performer participating in the production of an audiovisual work has authorised the INA to record and exploit his performance.
The CJEU considers that, by its question, the referring court asks, in essence, whether Articles 2(b) and 3(2)(a) of the Copyright Directive must be interpreted as precluding national legislation which, in relation to the exploitation of audiovisual archives by an institution designated for that purpose, introduces a rebuttable presumption that the performer has authorised the fixation and exploitation of his performance, where that performer takes part in the recording of an audiovisual work with a view to its transmission.
The Court answers this question in the negative. The Court considers that although the protection of performers extends to the exploitation of audiovisual archives, the provisions on authorisation of reproduction and making available to the public permit implied authorisation. If a performer who participates in the production of an audiovisual work for broadcasting by national broadcasting organisations and is therefore present at the place of recording of that work, is aware of the intended use of his performance and, moreover, performs his work for that use, it may be held that, unless the contrary is established, he has given his consent to the fixation and exploitation of that performance by means of that participation, in the Court's view.
C-484/18 - ECLI:EU:C:2019:970