Performers explicit consent – an EU Court decision

ballerina-1873265_1920.jpgThe European Court has ruled in case C‑484/18 Société de perception et de distribution des droits des artistes-interprètes de la musique et de la danse (Spedidam), PG, GF

v Institut national de l’audiovisuel. The dispute concerns the following:

The INA is a publicly owned industrial and commercial body of the French State which is responsible for conserving and promoting the national audiovisual heritage. In that capacity, it keeps, inter alia, the audiovisual archives of audiovisual producers, namely national broadcasting companies, and helps with the exploitation of those archives.

PG and GF are the successors in title of ZV, a musician who died in 1985.

During 2009, PG and GF became aware that INA was marketing, in its online shop, without their authorisation, video recordings and phonograms reproducing ZV’s performances during the years 1959 to 1978. It is apparent from the file before the Court that those video recordings and phonograms had been produced and then broadcast by national broadcasting companies.

On 28 December 2009, PG and GF, on the basis of Article L. 212-3 of the Intellectual Property Code, brought an action against the INA in order to obtain compensation for the alleged infringement of the performer’s rights which they hold.

By judgment of 24 January 2013, the Regional Court, Paris, France upheld that action. That court considered, in particular, that the application of Article 49 as amended did not exempt the INA from the requirement to obtain the performer’s prior authorisation for the use of the fixation of his performances. Thus, the sole purpose of the collective agreements provided for in the latter provision is to determine the remuneration due for new exploitations, provided that an initial exploitation has been authorised by the performers concerned. In the present case, proof of such authorisation has not been adduced by the INA. By judgment of 11 June 2014, the Court of Appeal, Paris, France, before which the INA brought its appeal, essentially upheld the judgment given at first instance.

By judgment of 14 October 2015, the Court of Cassation, France set aside in part the judgment of the Court of Appeal, Paris. The Court of Cassation found that that Court of Appeal had erred in holding that the application of the derogating rules at issue was subject to proof that the performer had authorised the initial exploitation of his performance, thus adding to the law a condition that it did not impose.

17      By judgment of 10 March 2017, the Court of Appeal, Versailles, France, before which the case was brought back, dismissed PG’s and GF’s claims. That court considered, in essence, that Article 49 as amended establishes, for the sole benefit of the INA, a simple presumption of the performer’s prior consent, which can be challenged, and thus does not call into question the performer’s exclusive right. The agreements with the trade union organisations referred to in that article do not confer on them the right to ‘authorise and prohibit’, which is vested in the performer, but have the sole purpose of fixing the performer’s remuneration.

18      PG, GF and Spedidam, which had intervened voluntarily before the Court of Appeal, Versailles, brought an appeal against the latter’s judgment before the referring court. The referring court indicates that it has doubts as to the compatibility of the legal rules set out in Article 49 as amended with Articles 2, 3 and 5 of Directive 2001/29.

19      In those circumstances, the Court of Cassation decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

‘Must Article 2(b), Article 3(2)(a) and Article 5 of Directive [2001/29] be interpreted as not precluding national rules, such as those laid down in Article 49 [as amended] [of the Law on freedom of communication], from establishing, for the benefit of the [INA], the beneficiary of the exploitation rights of national broadcasting companies in the audiovisual archives, derogating provisions under which the terms on which performers’ works can be exploited and the remuneration for that exploitation are governed by agreements concluded between the performers themselves or the employee organisations representing performers and that institute, which must specify, inter alia, the scale of remuneration and the arrangements for payment of that remuneration?’

The Court’s decision:

Article 2(b) and Article 3(2)(a) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society must be interpreted as not precluding national legislation which establishes, as regards the exploitation of audiovisual archives by a body set up for that purpose, a rebuttable presumption that the performer has authorised the fixation and exploitation of his performances, where that performer is involved in the recording of an audiovisual work so that it may be broadcast.


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