Advocate General opines that Member States do not have discretion in relation to the equitable remuneration of performers and producers from sound recordings

Article 8(2) of the Rental and Lending Directive (2006/115/EC) provides that Member States must ensure that performers and producers share the equitable remuneration paid by users relating to a broadcast or act of communication to the public of a phonogram that has been published for commercial purposes.

Article 4 of the WIPO Performances and Phonograms Treaty (WPPT) provides that contracting parties should accord to nationals of other contracting parties the treatment they accord to their own nationals with regard to the exclusive rights granted in the Treaty. This principle is not set out in the Directive.

The claimant, Recorded Artists Actors Performers Ltd (RAAP) is an Irish collecting society that manages the rights of certain performers. Phonographic Performance (Ireland) Ltd (PPI), is also an Irish collecting society, this time representing the rights of phonogram producers in sound recordings or phonograms in Ireland.

In Ireland, the Copyright and Related Rights Act 2000 employs different qualifying criteria for producers and performers, respectively, which have the effect of excluding certain performers from certain countries from the right of equitable remuneration (in particular, the United States of America, in response to a reservation under the WPPT entered by the USA in respect of performers’ rights). This had allowed PPI to argue that there is no obligation in law to pay those particular performers and, as a result, that PPI is entitled to retain the fees corresponding to those performers that had been collected under a contract between RAAP and PPI.

RAAP issued proceedings in Ireland against PPI challenging PPI’s position. RAAP argued that, in accordance with Article 8(2) of the Directive and international agreements (the WPPT and the WIPO Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations (the Rome Convention)) to which the Directive refers, licence fees payable under the Irish Act should be shared between the producer and the performer. RAAP said that the nationality and residence of the performer were irrelevant.

PPI argued that performers who are neither EEA nationals nor residents, and whose performances do not originate in a sound recording carried out in the EEA, are not eligible to receive a share of remuneration when those performances were played in Ireland. Otherwise, it said, if one were to pay those performers, that would infringe the international reciprocity approach adopted by Ireland and contained in the Irish Act. In particular, if one were to follow RAAP’s position, United States performers would be paid in Ireland, even though Irish performers do not receive equitable remuneration in the United States.

The Irish court asked the CJEU, inter alia, whether the obligation on national courts to interpret the Directive in the light of the purpose and objective of the Rome Convention and/or the WPPT is confined to concepts expressly referred to in the Directive, or whether it extends to concepts only found in those two international agreements. In particular, the Irish Court wished to know to what extent Article 8 of the Directive should be interpreted in light of the requirement for “national treatment” under Article 4 of the WPPT.

The Irish court also asked whether Member States have discretion to prescribe criteria for determining which performers qualify as “relevant performers” under Article 8 of the Directive. In particular, it asked whether a Member State can 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 domiciled in or residents of an EEA country.

Advocate General Tanchev opined that the CJEU should find that:

  • Article 8(2) should be interpreted in the light of the requirements of the WPPT, to which the Union is party, which include the obligation to provide national treatment as required by Article 4 of the WPPT, without the need for a specific provision to that effect;
  • a Member State does not have discretion to prescribe criteria for determining which performers qualify as “relevant performers” under Article 8 of the Directive. In particular, a Member State cannot restrict the right to share in equitable remuneration to circumstances where the performance takes place in the EEA irrespective of whether the performers are domiciled in or residents of an EEA country.
  • Member States are precluded from using the mechanics set out in the WPPT to respond to reservations entered by other contracting parties to the WPPT (such as the reservation in respect of performers’ rights entered by the US) in circumstances where the EU is also a signatory to the WPPT and in respect of an area that is the exclusive competence of the EU. Rights in sound recordings are an area of exclusive competence. Member States must therefore only apply the criteria set out in Article 8(2); and
  • it is inconsistent with Article 8(2) to limit the right of equitable remuneration in such a way that performers whose performances are fixed in the sound recording receive no remuneration and it accrues only to the benefit of the record producer.

To read the Opinion in full, click here.