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8 September 2020CopyrightSarah Morgan

CJEU rules on Irish royalties row

Member states are not free to make their own rules as to who qualifies for royalties when sound recordings of performance are played in public or broadcast, according to the Court of Justice of the European Union (CJEU).

In a ruling issued today, September 8, the EU’s highest court handed down its long-awaited decision in Recorded Artists Actors Performers (RAAP) v Phonographic Performance (Ireland) (PPI).

Background

PPI, which represents record producers, and RAAP, a collecting society for performers, had entered into an agreement which stipulated how fees payable in Ireland for the playing in public (such as in bars) or the broadcasting of recorded music must, after being paid by the users to PPI, be shared with the performers. This meant that the fees would be paid on in part by PPI to RAAP.

However, the collecting societies were in disagreement over the operation of the agreement in cases where the music played was performed by someone who is not a national or resident of an European Economic Area (EEA) member state.

RAAP argued that, in accordance with article 8(2) of directive 2006/115 and the international agreements to which that directive refers, fees payable must be shared between the record producer and the performer, regardless of the performer’s nationality and residence.

But, according to PPI, the regime established by the Irish Copyright and Related Rights Act 2000, performers who are neither nationals nor residents of an EEA member state, and whose performances do not come from a sound recording carried out in the EEA either, are not entitled to receive a share of the fees.

RAAP argued that the sums it was being paid by PPI were insufficient and brought an action against PPI before the Irish High Court.

The High Court subsequently referred questions to the EU’s highest court, asking which performers (and producers) can benefit from the right to ‘equitable remuneration’ under article 8(2) of Directive 2006/115.

Precluding and excluding

“Whilst article 8(2) of Directive 2006/115 leaves each member state the possibility of laying down, in the absence of agreement between the performers and record producers, the manner in which that remuneration is shared, it nevertheless sets out a clear and unconditional obligation to grant the performers and phonogram producers the right to equitable remuneration, which must be shared between them,” said the CJEU today.

According to the court, the right to a “single equitable remuneration”—conferred by article 8(2), which ensures the application of article 15(1) of the WIPO Performances and Phonograms Treaty 1996 (WWPT) in EU law—can’t be limited by the national legislature solely to nationals of the EEA member states.

Under article 15(1) of the WPPT, the contracting parties must confer on performers and record producers the right to a single equitable remuneration where records published for commercial purposes are used for broadcasting or for any communication to the public.

Reservations

The referring court also sought guidance from the CJEU on whether this treatment of producers and performers represents a legitimate response to a reservation under article 15(3) of the WPPT.

A number of countries have, by a reservation founded on article 15(3), declared that they don’t consider themselves bound by the article 15(1), while other countries—including the US—have declared that their application of article 15(1) will be limited.

Each of these reservations has the effect of limiting on their territories the right to a single equitable remuneration.

Resolving the dispute, the CJEU held that EU law must be interpreted as meaning that, even where countries notify a reservation, this doesn’t lead to limitations of the right provided for in article 8(2), in respect of nationals of those countries.

However, the court did add that such limitations could be introduced by the EU legislature in the future.

Finally, the court concluded that article 8(2) cannot be interpreted to limit the right of equitable remuneration in such a way that the record producer receives remuneration and doesn’t share it with the performer.

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