The concept of 'relevant performers' in Article 8(2) of Directive 2006/115 is to be interpreted in a uniform manner throughout the Union01-06-2021 Print this page
The concept of 'relevant performers' in Article 8(2) of Directive 2006/115 on rental right and lending right and on certain rights related to copyright in the field of intellectual property is to be interpreted in a uniform manner throughout the Union and precludes a Member State from excluding artists who are nationals of States not belonging to the EEA with the sole exception of artists who have their residence or domicile in the EEA and those who have made their contribution to a phonogram in the EEA: Article 8(2) should be interpreted in accordance with the WPPT and no reservation has been made pursuant to Article 15(3) WPPT, the obligation referred to in Article 8(2) to provide for an equitable remuneration to be shared between the producer of the phonogram and the performing artist shall apply when the use of the phonogram or a reproduction thereof takes place in the Union: it shall not be made a condition that the performer or the producer of the phonogram possesses the nationality of the EEA Member State or has their domicile in this Member State, nor that the place where the creative or artistic work is performed belongs to the territory of a Member State of the EEA. Article 8(2) of the Directive precludes a Member State from restricting the right to a single equitable remuneration in the case of performers and producers of phonograms who are nationals of third countries that have made a reservation under Article 15(3) WPPT with regard to the recognition of the right to a single equitable remuneration. Restrictions may, however, be introduced by the Union legislature if they meet the requirements of Article 52(1) Charter of Fundamental Rights of the European Union: need to preserve a level playing field for participation in the trade in recorded music is an objective of general interest that may justify a restriction of the neighbouring right set out in Article 8(2) of the Directive with regard to nationals of a third State which does not or only partly grant that right. Article 8(2) of the Directive precludes that the remuneration is only to be paid to the phonogram producer without having to share it with the performer: remuneration has the essential characteristic that it is shared and such an exclusion would undermine the undermine the aim of the Directive.
RAAP is an Irish company and is engaged in the collective management of the rights of performers. The defendant, PPI, which is also a company under Irish law, is engaged in the collective management of the rights of producers of phonograms. RAAP and PPI entered into a contract whereby PPI agreed to transfer to RAAP a portion of the fees it receives in order to effect a distribution of fees between phonogram producers and performers. RAAP and PPI disagree on the scope of that agreement with respect to remuneration paid to PPI for broadcast music performed by an artist who is not a national or resident of an EEA member state. According to RAAP, the nationality and residence of the artist is not relevant to this distribution. According to PPI, performers who are not nationals or residents of an EEA member state, nor whose performances originate from a sound recording made in the EEA, are not entitled to a share of the fees due when those performances are broadcasted in Ireland. RAAP considers that the amounts paid to it by PPI are insufficient. The High Court (court of first instance in Ireland) has referred preliminary questions to the Court in this regard. This is because Irish law precludes performers who are not a resident or domiciled in the EEA from receiving a share of the fees.
The following preliminary questions are referred by the High Court:
‘(1) Is the obligation on a national court to interpret … Directive 2006/115 … in the light of the purpose and objective of the Rome Convention and/or the WPPT confined to concepts which are expressly referenced in the directive, or does it, alternatively, extend to concepts which are only to be found in the two international agreements? In particular, to what extent must Article 8 of the directive be interpreted in light of the requirement for “national treatment” under Article 4 of the WPPT?
(2) Does a Member State have discretion to prescribe criteria for determining which performers qualify as “relevant performers” under Article 8 of the directive? In particular, can a Member State restrict the right to share in equitable remuneration to circumstances where either (i) the performance takes place in [an EEA] country, or (ii) the performers are domiciles or residents of an EEA country?
(3) What discretion does a Member State enjoy in responding to a reservation entered by another Contracting Party under Article 15(3) of the WPPT? In particular, is the Member State required to mirror precisely the terms of the reservation entered by the other Contracting Party? Is a Contracting Party required not to apply the 30-day rule in Article 5 of the Rome Convention to the extent that it may result in a producer from the reserving party receiving remuneration under Article 15(1) but not the performers of the same recording receiving remuneration? Alternatively, is the responding party entitled to provide rights to the nationals of the reserving party on a more generous basis than the reserving party has done, i.e. can the responding party provide rights which are not reciprocated by the reserving party?
(4) Is it permissible in any circumstances to confine the right to equitable remuneration to the producers of a sound recording, i.e. to deny the right to the performers whose performances have been fixed in that sound recording?’
The Court ruled as follows. The Court has emphasized in its case-law that it is not for the Member States to define the concepts contained in the Directives on copyright and related rights if no express reference is made to the law of the Member States. Therefore, the term 'performers concerned' in Article 8(2) of Directive 2006/115 must be interpreted uniformly throughout the Union. The Directive aims to ensure that authors and performers are provided with harmonized legal protection that guarantees the possibility of securing an adequate income and recouping their investments in such a way that it "does not conflict with international conventions on which the laws on copyright and related rights of many Member States are based." Accordingly, the concepts contained in the Directive must be interpreted in a manner consistent with the corresponding concepts contained in those treaties. One of those treaties is the WPPT. The Union and all its Member States are parties to that treaty. Article 8(2) of the Directive leaves it to each Member State to determine, in the absence of agreement between performers and phonogram producers, the manner in which remuneration is to be distributed. However, the provision contains a clear and unconditional obligation to grant the right to equitable remuneration to be shared between the parties. The obligation applies when the use of the phonogram or a reproduction thereof takes place in the Union. On the other hand, Directive 2006/115 does not require the performer or the producer of the phonogram to possess the nationality of an EEA Member State or to have his residence or domicile in such a Member State, nor does it require that the place where the creative or artistic work is carried out should be within the territory of an EEA Member State. The opposite is the case. Article 8(2) should be interpreted as best as possible in accordance with the WPPT. Parties to the WPPT should grant the right to equitable remuneration without discrimination to its own nationals and to nationals of other contracting parties. The right to a single equitable remuneration cannot be reserved by the national legislator only to nationals of EEA member states. Under Article 15(3) WPPT, any party may declare under notification of a reservation that it does not recognize, or recognizes in a limited way, the right to equitable remuneration. However, there is no such notification.
The right to a single equitable remuneration is a neighbouring right. That right is a component of the right to the protection of intellectual property enshrined in the Charter. Any restriction on the exercise of that neighboring right must therefore be provided by law. The mere existence of a reservation does not meet that requirement. Therefore, only the Union legislature may restrict this related right with respect to third-country nationals. There is no such provision in current Union law.
Finally, the Court holds that Article 8(2) of the Directive must be interpreted as precluding the restriction of the right to a single equitable remuneration in the sense that only the producer of the phonogram receives a remuneration, without having to share it with the performer. Indeed, such an exclusion undermines the objective of the Directive. Although a Member State does have the freedom to determine the conditions under which distribution takes place, distribution itself cannot be excluded.