The matter at hand
Subject of this matter is the meaning and scope of the concepts ‘phonogram’ and ‘reproduction of that phonogram’ as part of Article 8(2) of the Rental and Lending Rights DirectiveDirective 2006/115/EC of the European Parliament and of the Council of 12 December 2006 on rental rights and lending right and on certain rights related to copyright in the field of intellectual property of 1992 (old) and 2006 respectively.
The dispute underlying the main proceedings arose between Atresmedia, a leading Spanish media group, and, AGEDI and AIE, entities that respect manage the intellectual property rights of phonogram producers and those of performers. AGEDIA and AIE claimed compensation for unauthorised reproduction and public communication of synchronised phonograms in audiovisual works from Atresmedia.
In first instance, the claims of AGEDI and AIE against Atresmedia were denied by the Juzgado de lo Mercantil de Madrid, the Commercial Court of Madrid. Seeking review of the decision, AGEDI and AIE appealed the judgment before the Audiencia Provincial de Madrid (the Provincial Court of Madrid). In appeal, The Provincial - in favour of AGEDI and AIE - ruled that synchronised phonograms in audiovisual works require an equitable remuneration to the relevant rights holder.
Atresmedia brought an appeal before the Tribunal Supremo (the Supreme Court of Spain) that decided to stay the proceedings and refer preliminary questions on the subject of synchronised phonograms to the ECJ. In essence, the Tribunal Supremo asked the ECJ to clarify if the “reproduction of a phonogram published for commercial purposes” referred to in Article 8(2) of the Rental and Lending Rights DirectiveDirective 2006/115/EC of the European Parliament and of the Council of 12 December 2006 on rental rights and lending right and on certain rights related to copyright in the field of intellectual property also included the synchronised phonogram in an audiovisual work. And if so, if a broadcaster then would have the obligation to pay an equitable remuneration to the rights holder.
The judgment of the ECJ
In response to the first question, the ECJ notes that neither the Rental and Lending Rights DirectiveDirective 2006/115/EC of the European Parliament and of the Council of 12 December 2006 on rental rights and lending right and on certain rights related to copyright in the field of intellectual property, nor any EU-directives in the area of copyright law define the concept of ‘phonogram’ or contain an express reference to the law of the Member States for the purpose of determining the scope of that concept (paragraph 32). Hence, according to settled case-law, the meaning and scope of the concept is determined to an autonomous and uniform interpretation throughout the European Union Recorded Artists Actors Performers (C-265/19).
The ECJ first reiterates that the concept of ‘phonogram’ is a basic concept in the field of copyright and related rights. Therefore, the ECJ analyses the legislative background of the Rental and Lending Rights DirectiveDirective 2006/115/EC of the European Parliament and of the Council of 12 December 2006 on rental rights and lending right and on certain rights related to copyright in the field of intellectual property. With regard to the wording of Article 3(b) of the Rome Convention, the concept of ‘phonogram’ is defined as any ‘exclusively aural’ fixation of sounds of a performance or of other sounds. The ECJ considers that it follows from the foregoing provision that the audiovisual works do not fall within that concept (paragraph 37). Moreover, the concept should be interpreted in accordance with the WPPT. Along with the Rome Convention the WPPT precludes “a fixation of sounds incorporated in a cinematographic or other audiovisual work from being covered by the concept of ‘phonogram’ within the meaning of that provision” (paragraph 41).
As regards the concept of ‘reproduction of a phonogram’ the ECJ holds that an audiovisual recording containing the fixation of an audiovisual work cannot be classified as a ‘phonogram’ within the meaning of these provisions. Therefore, and on the same grounds, such a recording cannot be covered by the concept of ‘reproduction’ of that phonogram (paragraph 51 through 52).
Finally, the ECJ concludes that “it follows that the communication to the public of such a recording does not give rise to the right to remuneration provided for in those provisions” (paragraph 53). With regard to the second question the ECJ rules that “the single equitable remuneration referred to in those provisions must not be paid by the user where he or she makes a communication to the public of an audiovisual recording containing the fixation of an audiovisual work in which a phonogram or a reproduction of that phonogram has been incorporated” (paragraph 56).