Circul Globus Bucureşti (Circ & Variete Globus Bucureşti) v Uniunea Compozitorilor şi Muzicologilor din România - Asociaţia pentru Drepturi de Autor (UCMR - ADA).

• Jurisdiction: European Union
• Celex Number: 62010CJ0283
• ECLI: ECLI:EU:C:2011:772
• Date: 24 November 2011
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Docket Number: C-283/10

Case C-283/10

Circul Globus Bucureşti (Circ & Variete Globus Bucureşti)

v

Uniunea Compozitorilor şi Muzicologilor din România – Asociaţia pentru Drepturi de Autor (UCMR – ADA)

(Reference for a preliminary ruling from the

Inalta Curte de Casaţie şi Justiţie)

(Approximation of laws – Copyright and related rights – Directive 2001/29/EC – Article 3 – Concept of ‘communication of a work to a public present at the place where the communication originates’ – Dissemination of musical works in the presence of an audience without paying the collective management organisation the appropriate copyright fee – Entry into contracts, with the authors of the works, for copyright waiver – Scope of Directive 2001/29)

Summary of the Judgment

Approximation of laws – Copyright and related rights – Directive 2001/29 – Harmonisation of certain aspects of copyright and related rights in the information society – Communication to the public – Meaning

(European Parliament and Council Directive 2001/29, Art. 3(1))

Directive 2001/29 on the harmonisation of certain aspects of copyright and related rights in the information society and, more specifically, Article 3(1) thereof, must be interpreted as referring only to communication to a public which is not present at the place where the communication originates, to the exclusion of any communication of a work which is carried out directly in a place open to the public using any means of public performance or direct presentation of the work.

(see para. 41, operative part)

JUDGMENT OF THE COURT (Third Chamber)

24 November 2011 (*)

(Approximation of laws – Copyright and related rights – Directive 2001/29/EC – Article 3 – Concept of ‘communication of a work to a public present at the place where the communication originates’– Dissemination of musical works in the presence of an audience without paying the collective management organisation the appropriate copyright fee – Entry into contracts, with the authors of the works, for copyright waiver – Scope of Directive 2001/29)

In Case C‑283/10,

REFERENCE for a preliminary ruling under Article 267 TFEU from Înalta Curte de Casaţie şi Justiţie (Romania), made by decision of 14 May 2010, received at the Court on 7 June 2010, in the proceedings

Circul Globus Bucureşti (Circ & Variete Globus Bucureşti)

v

Uniunea Compozitorilor şi Muzicologilor din România – Asociaţia pentru Drepturi de Autor (UCMR – ADA)

THE COURT (Third Chamber),

composed of K. Lenaerts, President of the Chamber, J. Malenovský (Rapporteur), R. Silva de Lapuerta, E. Juhász and D. Šváby, Judges,

Advocate General: V. Trstenjak,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

– Uniunea Compozitorilor şi Muzicologilor din România – Asociaţia pentru Drepturi de Autor (UCMR – ADA), by A. Roată‑Palade, avocat,

– the Romanian Government, by A. Popescu, acting as Agent, and by A. Wellman and A. Borobeică, counsellors,

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

– the European Commission, by J. Samnadda and I.V. Rogalski, acting as Agents,

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

gives the following

Judgment

1 This reference for a preliminary ruling concerns the interpretation of Article 3(1) 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 2001 L 167, p. 10).

2 The reference has been made in proceedings between Uniunea Compozitorilor şi Muzicologilor din România – Asociaţia pentru Drepturi de Autor (UCMR – ADA) (‘UCMR – ADA’) and Circul Globus Bucureşti, now Circ & Variete Globus Bucureşti (‘Globus Circus’) concerning the alleged infringement, by Globus Circus, of intellectual property rights managed by UCMR – ADA.

Legal context

International law

3 Article 11 of the Berne Convention for the Protection of Literary and Artistic Works (Paris Act of 24 July 1971), as amended on 28 September 1979 (‘the Berne Convention’), states:

‘1. Authors of dramatic, dramatico-musical and musical works shall enjoy the exclusive right of authorising:

(i) the public performance of their works, including such public performance by any means or process;

(ii) any communication to the public of the performance of their works.

2. Authors of dramatic or dramatico-musical works shall enjoy, during the full term of their rights in the original works, the same rights with respect to translations thereof.’

European Union (‘EU’) law

4 Recitals 2 and 5 in the preamble to Directive 2001/29 state:

‘(2) The European Council, meeting at Corfu on 24 and 25 June 1994, stressed the need to create a general and flexible legal framework at Community level in order to foster the development of the information society in Europe. This requires, inter alia, the existence of an internal market for new products and services. Important Community legislation to ensure such a regulatory framework is already in place or its adoption is well under way. Copyright and related rights play an important role in this context as they protect and stimulate the development and marketing of new products and services and the creation and exploitation of their creative content.

…

(5) Technological development has multiplied and diversified the vectors for creation, production and exploitation. While no new concepts for the protection of intellectual property are needed, the current law on copyright and related rights should be adapted and supplemented to respond adequately to economic realities such as new forms of exploitation.’

5 Recital 18 to Directive 2001/29 is worded as follows:

‘This Directive is without prejudice to the arrangements in the Member States concerning the management of rights such as extended collective licences.’

6 Recitals 23 and 24 to that directive state:

‘(23) This Directive should harmonise further the author’s right of communication to the public. This right should be understood in a broad sense covering all communication to the public not present at the place where the communication originates. This right should cover any such transmission or retransmission of a work to the public by wire or wireless means, including broadcasting. This right should not cover any other acts.

(24) The right to make available to the public subject-matter referred to in Article 3(2) should be understood as covering all acts of making available such subject-matter to members of the public not present at the place where the act of making available originates, and as...