Phonogram producer can prevent under Article 2(c) Copyright Directive another person from taking a sound sample, even if very short ("sampling"), of his or her work for another phonogram, unless that sample is included in the phonogram in a modified form unrecognisable to the ear. Concept of ‘copy’ (Article 9(1)(b) Rental Directive) must, according to its preambule, be interpreted consistently with the same concept as it is used in the Geneva Convention. Reproduction of all or a substantial part of a phonogram constitutes a 'copy'. Member State cannot, in its national law, lay down an exception or limitation, other than those provided for in Article 5, to the phonogram producer’s right provided for in Article 2(c) of that directive. Use of a sound sample taken from a phonogram (sampling) may amount to a "quotation", on the basis of Article 5(3)(d) Copyright Directive, provided that that use has the intention of entering into dialogue with the work from which the sample was taken. Concept of ‘quotations’ (Article 5(3)(d) Copyright Directive) does not apply when it is not possible to identify the work concerned by the quotation in question. Article 2(c) Copyright Directive constitutes full harmonisation.
Lending within the meaning of Article 6(1) Rental Directive covers the lending of a digital copy: in compliance with one copy – one user. Member States may require that the digital copy of the book must have been put into circulation by a first sale or other transfer of ownership of that copy by the holder of the right of distribution to the public or with his consent. Public lending exception precluded if the copy was obtained from an unlawful source.
IPPT20140327, CJEU, UPC Telekabel v Constantin Film
ISP's: a person who makes protected subject-matter available to the public on a website without the agreement of the rightholder, is using the services of the internet service provider of the persons accessing that subject-matter
Annulment decision of the Council of the EU on the participation of both EU and Member States to negotiate on the Convention Council of Europe about the protection of neighbouring rights from broadcasters. Exclusive power of the Union (Article 3(2) TFEU): concerns a large part of the area covered by common rules of the Union and these negotiations may affect the common rules of the Union or change the schope of it. El 3(a) TFEU): right to rebroadcast, right of communcation to the public, the protection of pre-broadcast, program-carrying signals and the respect of the related rights of broadcasting organisations.
“Communication to the public” does not cover broadcasting, free of charge, of phonograms within private dental practices, enjoyed by patients without any active choice on their part. According to European law, individuals may not rely directly on TRIPS, WPPT and the Rome Convention. Concept of “communication to the public” must be interpreted in the light of TRIPS, WPPT and the Rome Convention.
Hotel operator (i) which provides televisions and/or radios is a user making a communication to the public of a phonogram which may be played in a broadcast and is obliged to pay equitable remuneration, and (ii) which provides other apparatus and phonograms which may be played on or heard from such apparatus is also a user making a communication to the public of a phonogram and is obliged to pay equitable remuneration. Hotel operator does not fall under the private use exception
Fair compensation for reproduction on a private basis: Final user is responsible for paying fair compensation for reproduction on a private basis. System of private copying levy open to Member States when able to pass on that levy in price paid by final user. With system of private copying levies it is for the Member State to ensure authors actually receive fair compensation. Interpretation of national law to allow recovery from person acting on a commercial basis, if recovery from purchaser is impossible, permitted.
Rights of phonogram producers: The holder of the rights, who is a national of a non-Member State, enjoys protection in a situation where the work or subject-matter at issue was, on 1 July 1995, protected as such in at least one Member State under that Member State’s national legislation.
Directive 93/83 does not preclude the fee for phonogram use being governed not only by the law of the Member State in whose territory the broadcasting company is established but also by the legislation of the Member State in which, for technical reasons, the terrestrial transmitter broadcasting to the first State is located.
The concept of equitable remuneration must be interpreted uniformly in all the Member States; it is for each Member State to determine, in its own territory, the most appropriate criteria. A proper balance has to be achieved between the interests of performing artists and producers in obtaining remuneration for the broadcast of a particular phonogram, and the interests of third parties in being able to broadcast the phonogram on terms that are reasonable.
Article 1(1) Council Directive 92/100/EEC on exclusive rental right deemed valid.
The principle of non-discrimination precludes a Member State from making the grant of an exclusive right subject to the requirement that the person concerned be a national of that State.