According to Article 8(2) of both the Copyright and Related Rights Directive (92/100/EC) and the Rental and Lending Right Directive (2006/115/EC), Member States must provide that a single equitable remuneration is paid by the user if a phonogram published for commercial purposes, or a reproduction of such phonogram, is used for broadcasting by wireless means or “for any communication to the public”. That remuneration must be shared between the relevant performers and the phonogram producers.

Atresmedia Corporación de Medios de Comunicación SA owns a number of TV channels on which it and broadcasts audiovisual works incorporating phonograms. The Asociación de Gestión de Derechos Intelectuales (AGDI) and Artistas Intérpretes o Ejecutantes, Sociedad de Gestión de España (AIES) manage, respectively, the IP rights of phonogram producers and those of performers.

In July 2010, AGDI and AIES issued proceedings against Atresmedia seeking payment for acts of communication to the public of phonograms published for commercial purposes, or reproductions of those phonograms, between 1 June 2003 and 31 December 2009 via Atresmedia’s TV channels, and for the unauthorised reproduction of phonograms in connection with those acts of communication to the public, although those ‘phonograms’; were incorporated into audiovisual productions.

The matter reached the Supreme Court of Spain, which asked the CJEU whether Article 8(2) must be interpreted as meaning that the single equitable remuneration referred to in those provisions must be paid by the user where he or she makes a communication to the public of an audiovisual recording containing the fixation of an audiovisual work in which a phonogram or a reproduction of that phonogram has been incorporated.

The CJEU noted that remuneration under Article 8(2) represents consideration for the use of a commercial phonogram during a broadcast or communication to the public. Such right to remuneration is compensatory in nature, the CJEU said, triggered by the broadcasting or communication to the public of the performance of the work fixed on a phonogram published for commercial purposes, or on a reproduction of such phonogram. The question here, therefore, was whether an audiovisual recording containing the fixation of an audiovisual work can be classified as a “phonogram” or “reproduction of that phonogram” under Article 8(2).

As for the meaning of “phonogram”, the CJEU said that, in the absence of a definition in the Directives or in any other EU Directives in the area of copyright law, it must be interpreted in the light of the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations (the Rome Convention) and the World Intellectual Property Organisation (WIPO) Performances and Phonograms Treaty (WPPT). Article 3(b) of the Rome Convention defines “phonogram” as any “exclusively aural” fixation of sounds of a performance or of other sounds. Article 2(b) of the WPPT, defines “phonogram” as “the fixation of the sounds of a performance or of other sounds, or of a representation of sounds, other than in the form of a fixation incorporated in a cinematographic or other audiovisual work”.

Therefore, the CJEU said, both the Rome Convention and the WPPT preclude a fixation of sounds incorporated in an audiovisual work from being covered by the concept of a “phonogram”.

Consequently, the CJEU said, a phonogram incorporated into an audiovisual work loses its status as a “phonogram” insofar as it forms part of that work. However, that does not affect the rights in the phonogram were it to be used independently from the audiovisual work. In this case, the CJEU found that the phonograms were incorporated into audiovisual works with the authorisation of the rights holders concerned and in return for remuneration paid to them in accordance with contractual arrangements. In addition, it was not argued that those phonograms were reused independently from the audiovisual work in which they were incorporated. In those circumstances, the CJEU held that an audiovisual recording containing the fixation of an audiovisual work cannot be classified as a “phonogram”.

As for the concept of “reproduction of a phonogram”, the CJEU noted that Article 3(e) of the Rome Convention defines “reproduction” as “the making of a copy or copies of a fixation”. The element triggering the right to the single equitable remuneration is not the act of making a reproduction, but the communication to the public of a work fixed on a phonogram, or of a reproduction of that phonogram (i.e. a copy of the phonogram resulting from the act of reproduction). Given that an audiovisual recording containing the fixation of an audiovisual work cannot be classified as a “phonogram”, then such a recording also cannot constitute a reproduction of a phonogram.

Therefore, the CJEU said, the communication to the public of an audiovisual recording containing the fixation of an audiovisual work does not give rise to the right to the single equitable remuneration.

However, the CJEU said, this conclusion did not mean that performers and phonogram producers cannot claim for remuneration in relation to the broadcast of a phonogram. Appropriate remuneration for the related rights in a phonogram should be paid as a result of contractual arrangements between the holders of the rights in phonograms and the producers of such works, it said. (Case C-147/19 Atresmedia Corporación de Medios de Comunicación SA v Asociación de Gestión de Derechos Intelectuales EU:C:2020:935 (18 November 2020) — to read the judgment in full, click here).