PROHIBITION OF DISCRIMINATION FOR PERFORMERS OUTSIDE THE EU: THE CGUE RECOGNISES THE RIGHT TO FAIR COMPENSATION
By decision of 8 September 2020 in case C-265/19, the Court of Justice of the European Union clarified the subjective scope of application of Article 8 of Directive 2006/115/EC on rental right and lending right and on certain rights related to copyright in favour of performers of works fixed in phonograms and communicated to the public by producers. In particular, the Court specified that the territorial origin of the rightholder may not be a determining factor with respect to the emergence of the right to obtain the fair compensation provided for by the Directive in favour of performers for broadcasting or for any communication to the public of protected musical works within the territory of the Union.
The case that has reached the Court of Justice of the European Union originates from a dispute between two Irish collective management societies of copyright and related rights in relation to the enforceability of the right to fair compensation by performers from countries outside the EEA (in particular the United States of America) for broadcasting or for any communication to the public of protected musical works within the Irish territory.
In detail, the Recorded Artists Actors Performers Ltd (“RAAP”) – which manages the rights of performers in Ireland – and Phonographic Performance (Ireland) Ltd (“PPI”) – which manages the rights of phonogram producers in Ireland – entered into a contract to regulate the way in which the rights to fair compensation payable by RAAP members in respect of the exploitation of protected works by PPI members are divided.
However, a dispute arose about the enforceability of these rights by persons from outside the EU because, according to the PPI phonographic producers’ collection, the Irish national legislation on copyright and related rights would only make the right to fair compensation enforceable in favour of an Irish citizen coming from or domiciled in a state of the European Economic Area (EEA) or, finally, of a country included in the list of states with conditions of reciprocity. On the contrary, the RAAP Performers’ Collections considered that also subjects coming from non-EEA territories (such as the United States of America) would have accrued the rights deriving from the fair compensation for the exploitation of the protected works because in EU law (nor in any international treaty signed by Ireland) there would be no limitation with respect to the territorial origin of the performers.
The decision of the Court
First, the Court specified that the definition of ‘performers’ in Article 8(2) of Directive 2006/115 must be interpreted uniformly throughout the Union in the absence of any reference to national rights as regards the scope of this definition. Since this provision does not expressly specify whether the term ‘performers’ refers only to performers who are nationals of a State in whose territory this Directive applies, or whether it also refers to performers who are nationals of another State, any limitation of territorial origin should be considered excluded.
The right to fair compensation is in fact, according to the Court, a right of a compensatory nature whose causal factor is the communication to the public of the interpretation or performance of the work fixed on a phonogram published for commercial purposes. It follows that each Member State of the Union should ensure, on the one hand, that a single equitable remuneration is paid by the user when a phonogram published for commercial purposes, or a reproduction thereof, is used for broadcasting or for any communication to the public and, on the other hand, that such remuneration is shared between the performer and the producer of the phonogram.
There is therefore no limitation on the territorial origin of the person who may claim such compensation.
This conclusion would also be confirmed by the international treaties signed by European States, including the Rome Convention of 26 October 1961 in relation to the protection of performers, according to which any performer who is a national of a Contracting State to that Convention must benefit from the national treatment accorded by the other Contracting States to their own nationals if the performance is recorded on a phonogram protected under that Convention.
According to the Court, the right to a single equitable remuneration, recognised by Article 8 of Directive 2006/115, cannot be reserved by the national legislature to nationals of EEA Member States alone, with the consequent disapplication of any national legislation (in the present case the Irish legislation) which conflicts with that harmonised definition.