Società Consortile Fonografici (SCF) v Marco Del Corso.

• Jurisdiction: European Union
• Celex Number: 62010CJ0135
• ECLI: ECLI:EU:C:2012:140
• Date: 15 March 2012
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Docket Number: C‑135/10

JUDGMENT OF THE COURT (Third Chamber)

15 March 2012 ( *1 )

‛Copyright and related rights in the information society — Direct applicability of the Rome Convention, the TRIPS Agreement and the WPPT in the European Union legal order — Directive 92/100/EC — Article 8(2) — Directive 2001/29/EC — Concept of ‘communication to the public’– Communication to the public of phonograms broadcast by radio in a dental practice’

In Case C-135/10,

REFERENCE for a preliminary ruling under Article 267 TFEU, from the Corte d’appello di Torino (Italy), made by decision of 10 February 2010, received at the Court on 15 March 2010, in the proceedings

Società Consortile Fonografici (SCF)

v

Marco Del Corso,

intervening party:

Procuratore generale della Repubblica,

THE COURT (Third Chamber),

composed of K. Lenaerts, President of the Chamber, J. Malenovský (Rapporteur), E. Juhász, G. Arestis and T. von Danwitz, Judges,

Advocate General: V. Trstenjak,

Registrar: A. Impellizzeri, Administrator,

having regard to the written procedure and further to the hearing on 7 April 2011,

after considering the observations submitted on behalf of:

— Società Consortile Fonografici (SCF), by L. Ubertazzi, F. Pocar and B. Ubertazzi, avvocati,

— Marco Del Corso, by R. Longhin, A. Tigani Sava, L. Bontempi and V. Vaccaro, avvocati,

— the Italian Government, by G. Palmieri, acting as Agent, and P. Gentili, avvocato dello Stato,

— Ireland, by D. O’Hagan, acting as Agent, assisted by E. Fitzsimons and J. Jeffers, barristers,

— the Greek Government, by G. Papadaki, acting as Agent,

— the French Government, by J. Gstalter, acting as Agent,

— the European Commission, by J. Samnadda and S. La Pergola, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 29 June 2011

gives the following

Judgment

1 This reference for a preliminary ruling concerns the interpretation of Article 8(2) 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), and of Article 3 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 (OJ 1992 L 167, p. 10).

2 The reference has been made in proceedings between Società Consortile Fonografici (‘SCF’) and Mr Del Corso, a dental surgeon, concerning the broadcasting in his dental practice of protected phonograms.

Legal context

International law

3 The Agreement on Trade-Related Aspects of Intellectual Property Rights (‘TRIPS Agreement’), which constitutes Annex 1C to the Agreement establishing the World Trade Organisation (WTO) signed at Marrakesh on 15 April 1994 and approved by Council Decision 94/800/EC of 22 December 1994 concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the agreements reached in the Uruguay Round multilateral negotiations (1986-1994) (OJ 1994 L 336, p. 1), contains a Part II entitled ‘Standards concerning the availability, scope and use of intellectual property rights’. Part II includes Article 14(1), (2) and (6) which provides: ‘1. In respect of a fixation of their performance on a phonogram, performers shall have the possibility of preventing the following acts when undertaken without their authorisation: the fixation of their unfixed performance and the reproduction of such fixation. Performers shall also have the possibility of preventing the following acts when undertaken without their authorisation: the broadcasting by wireless means and the communication to the public of their live performance. 2. Producers of phonograms shall enjoy the right to authorise or prohibit the direct or indirect reproduction of their phonograms. … 6. Any Member may, in relation to the rights conferred under paragraphs 1, 2 and 3, provide for conditions, limitations, exceptions and reservations to the extent permitted by [the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations, adopted at Rome on 26 October 1961 (‘Rome Convention’)]. However, the provisions of Article 18 of the Berne Convention (1971) shall also apply, mutatis mutandis, to the rights of performers and producers of phonograms in phonograms.’

4 The World Intellectual Property Organisation (WIPO) adopted, on 20 December 1996, the WIPO Performances and Phonograms Treaty (‘WPPT’) and the WIPO Copyright Treaty (‘WCT’). The two treaties were approved on behalf of the European Community by Council Decision 2000/278/EC of 16 March 2000 (OJ 2000 L 89, p. 6).

5 Article 1 of the WPPT provides: ‘1. Nothing in this Treaty shall derogate from existing obligations that Contracting Parties have to each other under the [Rome Convention]. 2. Protection granted under this Treaty shall leave intact and shall in no way affect the protection of copyright in literary and artistic works. Consequently, no provision of this Treaty may be interpreted as prejudicing such protection. 3. This Treaty shall not have any connection with, nor shall it prejudice any rights and obligations under, any other treaties.’

6 Under Article 2(b) of the WPPT, for the purposes of that treaty, ‘phonogram’ means 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.

7 Article 2(d) of the WPPT provides that ‘producer of a phonogram’ means the person, or the legal entity, who or which takes the initiative and has the responsibility for the first fixation of the sounds of a performance or other sounds, or the representations of sounds.

8 Article 2(g) of the WPPT states that ‘communication to the public’ of a performance or a phonogram means the transmission to the public by any medium, otherwise than by broadcasting, of sounds of a performance or the sounds or the representations of sounds fixed in a phonogram. For the purposes of Article 15, ‘communication to the public’ includes making the sounds or representations of sounds fixed in a phonogram audible to the public.

9 Under the heading ‘Right of making available of fixed performances’, Article 10 of the WPPT provides: ‘Performers shall enjoy the exclusive right of authorising the making available to the public of their performances fixed in phonograms, by wire or wireless means, in such a way that members of the public may access them from a place at a time individually chosen by them.’

10 Article 14 of the WPPT, headed ‘Right of making available of phonograms’, provides: ‘Producers of phonograms shall enjoy the exclusive right of authorising the making available to the public of their phonograms, by wire or wireless means, in such a way that members of the public may access them from a place and at a time individually chosen by them.’

11 Article 15 of the WPPT, headed ‘Right to remuneration for broadcasting and communication to the public’ is worded as follows: ‘1. Performers and producers of phonograms shall enjoy the right to a single equitable remuneration for the direct or indirect use of phonograms published for commercial purposes for broadcasting or for any communication to the public. 2. Contracting Parties may establish in their national legislation that the single equitable remuneration shall be claimed from the user by the performer or by the producer of a phonogram or by both. Contracting Parties may enact national legislation that, in the absence of an agreement between the performer and the producer of a phonogram, sets the terms according to which performers and producers of phonograms shall share the single equitable remuneration. 3. Any Contracting Party may, in a notification deposited with the Director-General of WIPO, declare that it will apply the provisions of paragraph 1 only in respect of certain uses, or that it will limit their application in some other way, or that it will not apply these provisions at all. 4. For the purposes of this Article, phonograms made available to the public by wire or wireless means in such a way that members of the public may access them from a place and at a time individually chosen by them shall be considered as if they had been published for commercial purposes.’

12 Under Article 23(1) of theWPPT: ‘Contracting Parties undertake to adopt, in accordance with their legal systems, the measures necessary to ensure the application of this Treaty.’

13 Article 8 of the WCT, headed ‘Right of communication to the public’: ‘Without prejudice to the provisions of Articles 11(1)(ii), 11bis(1)(i) and (ii), 11ter(1)(ii), 14(1)(ii) and 14bis(1) of the Berne Convention, authors of literary and artistic works shall enjoy the exclusive right of authorising any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access these works from a place and at at time individually chosen by them.’

14 The European Union is not a Contracting Party to the Rome Convention, unlike all the Member States of the European Union except Malta.

15 Under Article 12 of the Rome Convention, which concerns the secondary use of phonograms: ‘If a phonogram published for commercial purposes, or a reproduction of such phonogram, is used directly for broadcasting...