Recorded Artists Actors Performers Ltd v Phonographic Performance (Ireland) Ltd and Others.

• Jurisdiction: European Union
• Date: 08 September 2020
• Court: Court of Justice (European Union)

JUDGMENT OF THE COURT (Grand Chamber)

8 September 2020 (*)

(Reference for a preliminary ruling – Intellectual property – Rights related to copyright – Directive 2006/115/EC – Article 8(2) – Use of phonograms in the European Union – Right of the performers to equitable remuneration shared with the phonogram producers – Applicability to nationals of third States – Performances and Phonograms Treaty – Articles 4 and 15 – Reservations notified by third States – Limitations of the right to equitable remuneration that may, on the basis of reciprocity, follow, in the European Union, for nationals of third States from those reservations – Article 17(2) and Article 52(1) of the Charter of Fundamental Rights of the European Union – Fundamental right to the protection of intellectual property – Requirement that any limitation must be provided for by law, respect the essence of the fundamental right and be proportionate – Division between the European Union and the Member States of competences to set those limitations – Division of competences in relations with third States – Article 3(2) TFEU – Exclusive competence of the European Union)

In Case C‑265/19,

REQUEST for a preliminary ruling under Article 267 TFEU from the High Court (Ireland), made by decision of 11 January 2019, received at the Court on 29 March 2019, in the proceedings

Recorded Artists Actors Performers Ltd

v

Phonographic Performance (Ireland) Ltd,

Minister for Jobs, Enterprise and Innovation,

Ireland,

Attorney General,

THE COURT (Grand Chamber),

composed of K. Lenaerts, President, R. Silva de Lapuerta, Vice-President, J.‑C. Bonichot, M. Vilaras, E. Regan, M. Safjan, P.G. Xuereb, L.S. Rossi and I. Jarukaitis, Presidents of Chambers, M. Ilešič (Rapporteur), L. Bay Larsen, T. von Danwitz, C. Toader, D. Šváby and N. Piçarra, Judges,

Advocate General: E. Tanchev,

Registrar: C. Strömholm, Administrator,

having regard to the written procedure and further to the hearing on 4 February 2020,

after considering the observations submitted on behalf of:

– Recorded Artists Actors Performers Ltd, by Y. McNamara, Barrister-at-Law, L. Scales, Solicitor, and M. Collins, Senior Counsel,

– Phonographic Performance (Ireland) Ltd, by H. Sheehy, Solicitor, P. Gallagher, Senior Counsel, J. Newman, Senior Counsel, and J. O’Connell, Barrister-at-Law,

– Ireland, by M. Browne, P. Clifford and A. Joyce, acting as Agents, P. McCann, Senior Counsel, and J. Bridgeman, Senior Counsel,

– the European Commission, by J. Samnadda, J. Norris, É. Gippini Fournier and A. Biolan, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 2 July 2020,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of Article 8 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), read in the light, in particular, of the World Intellectual Property Organisation (WIPO) Performances and Phonograms Treaty, adopted in Geneva on 20 December 1996 and approved on behalf of the European Community by Council Decision 2000/278/EC of 16 March 2000 (OJ 2000 L 89, p. 6; ‘the WPPT’).

2 The request has been made in proceedings between, on the one hand, Recorded Artists Actors Performers Ltd (‘RAAP’) and, on the other, Phonographic Performance (Ireland) Ltd (‘PPI’), the Minister for Jobs, Enterprise and Innovation (Ireland), Ireland and the Attorney General concerning the right of nationals of third States to a single equitable remuneration when they have contributed to a phonogram which is used in Ireland.

Legal context

The Vienna Convention on the Law of Treaties

3 Article 19 of the Vienna Convention on the Law of Treaties of 23 May 1969 (United Nations Treaty Series, vol. 1155, p. 331) provides:

‘A State may, when signing, ratifying, accepting, approving or acceding to a treaty, formulate a reservation …’

4 Article 21 of that convention provides:

‘1. A reservation established with regard to another party in accordance with Articles 19, 20 and 23:

(a) modifies for the reserving State in its relations with that other party the provisions of the treaty to which the reservation relates to the extent of the reservation; and

(b) modifies those provisions to the same extent for that other party in its relations with the reserving State.

2. The reservation does not modify the provisions of the treaty for the other parties to the treaty inter se.

…’

The Rome Convention

5 The International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations was concluded in Rome on 26 October 1961 (‘the Rome Convention’).

6 The European Union is not a party to the Rome Convention. However, all of its Member States other than the Republic of Malta are.

7 Article 2 of the Rome Convention provides:

‘1. For the purposes of this Convention, national treatment shall mean the treatment accorded by the domestic law of the Contracting State in which protection is claimed:

(a) to performers who are its nationals, as regards performances taking place, broadcast, or first fixed, on its territory;

(b) to producers of phonograms who are its nationals, as regards phonograms first fixed or first published on its territory;

…

2. National treatment shall be subject to the protection specifically guaranteed, and the limitations specifically provided for, in this Convention.’

8 As set out in Article 4 of the Rome Convention:

‘Each Contracting State shall grant national treatment to performers if any of the following conditions is met:

(a) the performance takes place in another Contracting State;

(b) the performance is incorporated in a phonogram which is protected under Article 5 of this Convention;

…’

9 Article 5 of the Rome Convention provides:

‘1. Each Contracting State shall grant national treatment to producers of phonograms if any of the following conditions is met:

(a) the producer of the phonogram is a national of another Contracting State (criterion of nationality);

(b) the first fixation of the sound was made in another Contracting State (criterion of fixation);

(c) the phonogram was first published in another Contracting State (criterion of publication).

2. If a phonogram was first published in a non-contracting State but if it was also published, within thirty days of its first publication, in a Contracting State (simultaneous publication), it shall be considered as first published in the Contracting State.

3. By means of a notification deposited with the Secretary-General of the United Nations, any Contracting State may declare that it will not apply the criterion of publication or, alternatively, the criterion of fixation. Such notification may be deposited at the time of ratification, acceptance or accession, or at any time thereafter; in the last case, it shall become effective six months after it has been deposited.’

10 Article 17 of the Rome Convention provides:

‘Any State which, on October 26, 1961, grants protection to producers of phonograms solely on the basis of the criterion of fixation may, by a notification deposited with the Secretary-General of the United Nations at the time of ratification, acceptance or accession, declare that it will apply, for the purposes of Article 5, the criterion of fixation alone …’

The WPPT

11 The European Union and its Member States are parties to the WPPT. This international agreement entered into force for the European Union and certain Member States, including Ireland, on 14 March 2010. For the remaining Member States, it entered into force on an earlier date. About 100 States in total are parties to the WPPT.

12 Article 1(1) of the WPPT is worded as follows:

‘Nothing in this Treaty shall derogate from existing obligations that Contracting Parties have to each other under the [Rome Convention].’

13 Article 2 of the WPPT states:

‘For the purposes of this Treaty:

(a) “performers” are actors, singers, musicians, dancers, and other persons who act, sing, deliver, declaim, play in, interpret, or otherwise perform literary or artistic works or expressions of folklore;

(b) “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;

(c) “fixation” means the embodiment of sounds, or of the representations thereof, from which they can be perceived, reproduced or communicated through a device;

(d) “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;

…’

14 As set out in Article 3 of the WPPT, headed ‘Beneficiaries of Protection under this Treaty’:

‘1. Contracting Parties shall accord the protection provided under this Treaty to the performers and producers of phonograms who are nationals of other Contracting Parties.

2. The nationals of other Contracting Parties shall be understood to be those performers or producers of phonograms who would meet the criteria for eligibility for protection provided under the Rome Convention, were all the Contracting Parties to this Treaty Contracting States of that Convention. In respect of these criteria of eligibility, Contracting Parties shall apply the relevant definitions in Article 2 of this Treaty.

3. Any Contracting Party availing itself of the possibilities provided in Article 5(3) of the Rome Convention or, for the purposes of Article 5 of the same Convention, Article 17 thereof shall make a notification as foreseen in those provisions to the Director General of [WIPO].’

15 Article 4 of the WPPT, headed ‘National Treatment’, provides:

‘1. Each Contracting Party shall accord to nationals of other Contracting Parties, as...