Stichting ter Exploitatie van Naburige Rechten (SENA) v Nederlandse Omroep Stichting (NOS).

• Jurisdiction: European Union
• Celex Number: 62000CJ0245
• ECLI: ECLI:EU:C:2003:68
• Docket Number: C-245/00
• Date: 06 February 2003
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling

Case C-245/00


Stichting ter Exploitatie van Naburige Rechten (SENA)
v
Nederlandse Omroep Stichting (NOS)


(Reference for a preliminary ruling from the Hoge Raad der Nederlanden)

«(Directive 92/100/EEC – Rental right and lending right and certain rights related to copyright in the field of intellectual property – Article 8(2) – Broadcasting and communication to the public – Equitable remuneration)»

Opinion of Advocate General Tizzano delivered on 26 September 2002

I - 0000

Judgment of the Court (Sixth Chamber), 6 February 2003

I - 0000

Summary of the Judgment

Approximation of laws – Copyright and related rights – Rental right and lending right of protected works – Directive 92/100 – Broadcasting and transmission to the public – Equitable renumeration – Concept – Uniform interpretation – Implementation by Member States – Criteria – Limits

(Council Directive 92/100, Art. 8(2))Article 8(2) of Directive 92/100 on rental right and lending right and on certain rights related to copyright in the field of intellectual property requires the Member States to lay down rules ensuring that users pay an equitable remuneration when a phonogram is used for broadcasting or any form of communication to the public. The concept of equitable remuneration in that provision must be interpreted uniformly in all the Member States and applied by each Member State; it is for each Member State to determine, in its own territory, the most appropriate criteria for assuring, within the limits imposed by Community law and Directive 92/100 in particular, adherence to that Community concept.In that regard, Article 8(2) does not preclude a model for calculating what constitutes equitable remuneration that operates by reference to variable and fixed factors, such as the number of hours of phonograms broadcast, the viewing and listening densities achieved by the radio and television broadcasters represented by the broadcast organisation, the tariffs fixed by agreement in the field of performance rights and broadcast rights in respect of musical works protected by copyright, the tariffs set by the public broadcast organisations in the Member States bordering on the Member State concerned, and the amounts paid by commercial stations, provided that that model is such as to enable a proper balance to be achieved between the interests of performing artists and producers in obtaining remuneration for the broadcast of a particular phonogram, and the interests of third parties in being able to broadcast the phonogram on terms that are reasonable, and that it does not contravene any principle of Community law.see paras 33, 38, 46, operative part 1-2

JUDGMENT OF THE COURT (Sixth Chamber)
6 February 2003 (1)

((Directive 92/100/EEC – Rental right and lending right and certain rights related to copyright in the field of intellectual property – Article 8(2) – Broadcasting and communication to the public – Equitable remuneration))

In Case C-245/00, REFERENCE to the Court under Article 234 EC by the Hoge Raad der Nederlanden (Netherlands) for a preliminary ruling in the proceedings pending before that court between Stichting ter Exploitatie van Naburige Rechten (SENA)

and

Nederlandse Omroep Stichting (NOS), on 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),

THE COURT (Sixth Chamber),,

composed of: J.-P. Puissochet (Rapporteur), President of the Chamber, C. Gulmann, V. Skouris, F. Macken and J.N. Cunha Rodrigues, Judges, Advocate General: A. Tizzano,
Registrar: M.-F. Contet, Administrator,

after considering the written observations submitted on behalf of:

─

Stichting ter Exploitatie van Naburige Rechten (SENA), by J.L.R.A. Huydecoper and H.G. Sevenster, advocaten,

─

Nederlandse Omroep Stichting (NOS), by W. VerLoren van Themaat and R.S. Meijer, advocaten,

─

the Netherlands Government, by M.A. Fierstra, acting as Agent,

─

the German Government, by A. Dittrich and W.-D. Plessing, acting as Agents,

─

the Portuguese Government, by L.I. Fernandes and J.C. de Almeida e Paiva, acting as Agents,

─

the Finnish Government, by T. Pynnä, acting as Agent,

─

the United Kingdom Government, by G. Amodeo, acting as Agent, assisted by J. Stratford, Barrister,

─

the Commission of the European Communities, by K. Banks and H.M.H. Speyart, acting as Agents,

having regard to the Report for the Hearing,

after hearing the oral observations of Stichting ter Exploitatie van Naburige Rechten (SENA), represented by E. Pijnacker Hordijk and T. Cohen Jehoram, advocaten, of the Nederlandse Omroep Stichting (NOS), represented by W. VerLoren van Themaat, of the Netherlands Government, represented by J. van Bakel, acting as Agent, and the Commission, represented by H.M.H. Speyart, at the hearing on 2 May 2002,

after hearing the Opinion of the Advocate General at the sitting on 26 September 2002,

gives the following

Judgment

1

By judgment of 9 June 2000, received at the Court on 19 June 2000, the Hoge Raad der Nederlanden referred for a preliminary ruling under Article 234 EC three questions on 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).

2

Those questions were referred in the context of proceedings between the Stichting ter Exploitatie van Naburige Rechten (Association for the Exploitation of Related Rights, hereinafter SENA) and the Nederlandse Omroep Stichting (Netherlands Broadcasting Association, hereinafter NOS) relating to the determination of the equitable remuneration to be paid to performing artists and phonogram producers for the broadcasting of phonograms by radio and television.

Community legislation

3

The object of Directive 92/100 is to establish harmonised legal protection for the rental and lending right and certain rights related to copyright in the field of intellectual property.

4

It is clear from the first recital of the preamble to Directive 92/100 that harmonisation is intended to remove differences between national laws where they are sources of barriers to trade and distortions of competition which impede the proper functioning of the internal market.

5

The 7th, 11th, 15th and 17th recitals in the preamble to that Directive state as follows: Whereas 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; whereas the possibility for securing that income and recouping that investment can only effectively be guaranteed through adequate legal protection of the rightholders concerned;...Whereas the Community's legal framework on the rental right and lending right and on certain rights related to copyright can be limited to establishing that Member States provide rights with respect to rental and lending for certain groups of rightholders and further to establishing the rights of fixation, reproduction, distribution, broadcasting and communication to the public for certain groups of rightholders in the field of related rights protection;...Whereas it is necessary to introduce arrangements ensuring that an unwaivable equitable remuneration is obtained by authors and performers who must retain the possibility to entrust the administration of this right to collecting societies representing them;...Whereas the equitable remuneration must take account of the importance of the contribution of the authors and performers concerned to the phonogram or film;....

6

Article 8(1) and (2) of Directive 92/100 provides as follows:

1.

Member...