Performers From Third States Are Entitled To Single Equitable ...

The Grand Chamber of the Court of Justice has handed down its judgment in Recorded Artists Actors Performers (C-265/19), a case stemming from a request for a preliminary ruling by the High Court (Ireland) on the interpretation of Article 8(2) of Directive 2006/115 in the light of the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations (the Rome Convention) and the World Intellectual Property Organisation Performances and Phonograms Treaty (WPPT).

The referring court sought the interpretation of Article 8(2) of the Directive and those international agreements in the context of a dispute over an agreement between two collective management organisations for performers and phonogram producers on how to share the fee/remuneration between phonogram producers and performers, where the latter are not EEA-resident. Essentially the question was whether Member States can restrict the right to equitable remuneration to EEA resident-performers when transposing ‘relevant performers’ under the Directive

In its judgment, the Court of Justice first states that the obligation laid down in Article 8(2), ensuring equitable and shared remuneration between the phonogram producer and the performer, applies where the use of the phonogram takes place in the EU, and does not specify a condition that requires the performer or phonogram producer to be an EEA national or domiciled or resident in the EEA area. 

Unless any formal reservation is made by a party to the WPPT in relation to the right to a single equitable remuneration, which is not the case for any EU Member State, Article 8(2) cannot be implemented in a way that excludes the right to single equitable remuneration from third State nationals.

This notwithstanding, the Court reasons that Member States are not required to grant that right in an unlimited way to nationals of a third State which excludes or limits the grant of such right on its territory. In such situations, the need to safeguard fair conditions of involvement in the recorded music business constitutes an objective in the public interest capable of justifying a limitation of the right related to copyright provided for in Article 8(2) of Directive. However, given that that would amount to a limitation to intellectual property enshrined in the Charter of Fundamental Rights, any such limitation must be provided for by law, and thus a mere reservation to an international treaty does not fulfil that requirement. Moreover, the Court notes that since Article 8(2) is a harmonised rule, it is for the EU legislature alone to limit the right to copyright in respect of certain nationals of third States, as the subject matter in question is of exclusive external competence of the EU pursuant to Article 3(2) TFEU.

The judgment is available here.