CJEU Case C-265/19 / Opinion

Recorded Artists Actors Performers Ltd v Phonographic Performance (Ireland) Ltd and Others
Deciding body type
Court of Justice of the European Union
Deciding body
Advocate General
Decision date
ECLI (European case law identifier)
  • CJEU Case C-265/19 / Opinion

    Key facts of the case:

    Request for a preliminary ruling from the High Court (Irlande).
    Reference for a preliminary ruling – Intellectual property – Rights related to copyright – Directive 2006/115/EC – Article 8(2) – Use of phonograms in the European Union – Right of the performers to equitable remuneration shared with the phonogram producers – Applicability to nationals of third States – Performances and Phonograms Treaty – Articles 4 and 15 – Reservations notified by third States – Limitations of the right to equitable remuneration that may, on the basis of reciprocity, follow, in the European Union, for nationals of third States from those reservations – Article 17(2) and Article 52(1) of the Charter of Fundamental Rights of the European Union – Fundamental right to the protection of intellectual property – Requirement that any limitation must be provided for by law, respect the essence of the fundamental right and be proportionate – Division between the European Union and the Member States of competences to set those limitations – Division of competences in relations with third States – Article 3(2) TFEU – Exclusive competence of the European Union.

    Outcome of the case:

    For those reasons, I propose that the Court should answer the questions referred for a preliminary ruling by the High Court (Ireland) as follows:

    1. Article 8(2) of Directive 2006/115/EC of the European Parliament and of the Council of 12 December 2006 on rental right and lending right and on certain rights related to copyright in the field of intellectual property is to be interpreted in the light of the requirements of the World Intellectual Property Organisation (‘WIPO’) Performances and Phonograms Treaty (‘the WPPT’) to which the Union is party and as such it is consistent with the Union’s obligation to provide national treatment as required by Article 4 of the WPPT without the need for a specific provision to this effect.
    2. A Member State does not have discretion to prescribe criteria for determining which performers qualify as ‘relevant performers’ under Article 8 of Directive 2006/115. In particular, a Member State cannot restrict the right to share in equitable remuneration to circumstances where the performance takes place in the European Economic Area (EEA) irrespective of whether the performers are domiciled in or residents of an EEA country.
    3. Member States enjoy no discretion in an area that is the exclusive competence of the Union and are precluded from responding to the reservations entered by other Contracting Parties to the WPPT or from applying criteria other than those set out in Article 8(2) of Directive 2006/115.
    4. It is inconsistent with Article 8(2) of Directive 2006/115 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.
  • Paragraphs referring to EU Charter

    53) When one analyses the text of Directive 2006/115, it is clear that third-country nationals are not excluded from the scope of application of that directive and, what is more, that is fully consistent with the Union’s obligations in the context of the WPPT and with the Charter of Fundamental Rights of the European Union. Arguably, from a fundamental rights perspective, both the Member States and the European Union must ensure that, in the Union, every performer and producer receives equitable remuneration for the communication of his or her performance to the public, notwithstanding the existence of a reservation made by a third State which has the effect that EEA performers and producers do not receive such remuneration on the territory of that third State. Fundamental rights are universal in nature and what is at issue here is the right to property.