Vereniging van Educatieve en Wetenschappelijke Auteurs (VEWA) v Belgische Staat.

• Jurisdiction: European Union
• Celex Number: 62010CJ0271
• ECLI: ECLI:EU:C:2011:442
• Docket Number: C-271/10
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Date: 30 June 2011

Case C-271/10

Vereniging van Educatieve en Wetenschappelijke Auteurs (VEWA)

v

Belgische Staat

(Reference for a preliminary ruling from the Raad van State)

(Directive 92/100/EEC – Copyright and related rights – Public lending – Remuneration of authors – Adequate income)

Summary of the Judgment

Approximation of laws – Copyright and related rights – Rental right and lending right on protected works – Directive 92/100 – Remuneration of authors in the event of public lending

(Council Directive 92/100, Art. 5(1))

Article 5(1) of Directive 92/100 on rental right and lending right and on certain rights related to copyright in the field of intellectual property precludes legislation, which establishes a system under which the remuneration payable to authors in the event of public lending is calculated exclusively according to the number of borrowers registered with public establishments, on the basis of a flat-rate amount fixed per borrower and per year.

Given that remuneration constitutes consideration for the harm caused to authors by reason of the use of their works without their authorisation, the determination of the amount of that remuneration cannot be completely dissociated from the elements which constitute that harm. As that harm is the result of public lending, that is to say, the making available of protected works by establishments accessible to the public, the amount of the remuneration due should take account of the extent to which those works are made available, both as regards the number of borrowers registered and the number of protected works made available by a public lending establishment.

(see paras 37-39, 43, operative part)

JUDGMENT OF THE COURT (Third Chamber)

30 June 2011 (*)

(Directive 92/100/EEC – Copyright and related rights – Public lending – Remuneration of authors – Adequate income)

In Case C‑271/10,

REFERENCE for a preliminary ruling under Article 267 TFEU from the Raad van State (Belgium), made by decision of 17 May 2010, received at the Court on 31 May 2010, in the proceedings

Vereniging van Educatieve en Wetenschappelijke Auteurs (VEWA)

v

Belgische Staat,

THE COURT (Third Chamber),

composed of D. Šváby, President of the Seventh Chamber, acting for the President of the Third Chamber, R. Silva de Lapuerta, E. Juhász, J. Malenovský (Rapporteur) and T. von Danwitz, Judges,

Advocate General: V. Trstenjak,

Registrar: C. Strömholm, Administrator,

having regard to the written procedure and further to the hearing on 24 March 2011,

after considering the observations submitted on behalf of:

– the Vereniging van Educatieve en Wetenschappelijke Auteurs (VEWA), by Y. Nelissen Grade and S. Verbeke, advocaten,

– the Belgian Government, by T. Materne and J.-C. Halleux, acting as Agents, and by C. Doutrelepont and K. Lemmens, avocats,

– the Spanish Government, by N. Díaz Abad, acting as Agent,

– the European Commission, by M. van Beek and J. Samnadda, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1 The reference for a preliminary ruling in the present case concerns the interpretation of the concept of ‘remuneration’ paid to copyright holders in respect of public lending, as set out in Article 5(1) of Council Directive 92/100/EEC of 19 November 1992 on rental right and lending right and on certain rights related to copyright in the field of intellectual property (OJ 1992 L 346, p. 61), now Article 6(1) 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 (OJ 2006 L 376, p. 28).

2 The reference has been made in an action for annulment brought by the Vereniging van Educatieve en Wetenschappelijke Auteurs (Association of Educational and Scientific Authors) (VEWA) against the Belgische Staat concerning the Royal Decree of 25 April 2004 on remuneration rights for the public lending of authors, interpreting or performing artists, phonogram producers and producers of the first fixation of films (‘the Royal Decree’).

Legal context

European Union law

3 The 7th, 14th, 15th and 18th recitals in the preamble to Directive 92/100 are worded as follows:

‘…

… the creative and artistic work of authors and performers necessitates an adequate income as a basis for further creative and artistic work, and the investments required particularly for the production of phonograms and films are especially high and risky; … the possibility [of] securing that income and recouping that investment can only effectively be guaranteed through adequate legal protection of the rightholders concerned;

…

… where lending by an establishment accessible to the public gives rise to a payment the amount of which does not go beyond what is necessary to cover the operating costs of the establishment, there is no direct or indirect economic or commercial advantage within the meaning of this Directive;

… it is necessary to introduce arrangements ensuring that an unwaivable equitable remuneration is obtained by authors and performers …;

…

… it is also necessary to protect the rights at least of authors as regards public lending by providing for specific arrangements; … however, any measures based on Article 5 of this Directive have to comply with Community law, in particular with Article 7 of the Treaty’.

4 Article 1(1) to (3) of Directive 92/100 states:

‘1. In accordance with the provisions of this Chapter, Member States shall provide, subject to Article 5, a right to authorise or prohibit the rental and lending of originals and copies of copyright works, and other subject matter as set out in Article 2(1).

2. For the purposes of this Directive, “rental” means making available for use, for a limited period of time and for direct or indirect economic or commercial advantage.

3. For the purposes of this Directive, “lending” means making available for use, for a limited period of time and not for direct or indirect economic or commercial advantage, when it is made through establishments which are accessible to the public.’

5 Article 4(1) of Directive 92/100 provides:

...