19 November 2020CopyrightRory O'Neill

Audiovisual broadcasts aren’t ‘phonograms’, CJEU rules

Music rights owners can’t use EU copyright law to claim compensation for the use of their work in “audiovisual works” such as TV broadcasts, the Court of Justice of the European Union (CJEU) has ruled.

In the opinion, issued yesterday, November 18, the court said that such compensation must be settled under contractual agreements between the relevant parties, rather than provisions in EU copyright law that allow for a “single equitable remuneration” for rights owners.

Two Spanish organisations representing music rights owners, AIE and AGEDI, argued they were entitled to this compensation for the use of their work in broadcasts on TV channels operated by Atresmedia Corporación.

The copyright laws in question, namely Directive 92/100 and Directive 2006/115, allow rights owners to claim this remuneration for the use of a “phonogram” in wireless broadcasts.

But according to the CJEU, this does not apply to situations where the work is “fixated” in an audiovisual work.

While EU copyright law does not specifically define a “phonogram”, the court cited international agreements, including the 1961 Rome Convention, which consider the term to refer to exclusively aural works.

The remuneration provisions for phonograms in EU law, the court ruled, therefore don’t apply to the “fixation of sounds incorporated in a cinematographic or other audiovisual work”.

In this case, Astresmedia used the works with the authorisation of the rights owners, and provided compensation under contractual agreements.

AGEDI and AEI argued they were then also entitled to the “single equitable remuneration” when Astresmedia made copies of the broadcast.

The rights owners were initially successful at the Madrid Provincial Court, which ruled that the audiovisual works “cannot be regarded as anything other than a reproduction of [the] phonogram”.

But the Spanish Supreme Court, on appeal, referred the case to the CJEU, seeking clarity on whether EU copyright law entitled AGEDI and AEI to the single equitable remuneration.

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