the matter at hand

Kopiosto is a collective management organisation within the meaning of Article 3(a) Collective Management DirectiveDirective 2014/26/EU of the European Parliament and of the Council of 26 February 2014 on collective management of copyright and related rights and multi-territorial licensing of rights in musical works for online use in the internal market. Kopiosto manages and grants licences that relate to retransmission rights of works included in a radio or television broadcast on behalf of numerous authors on the basis of mandates conferred on it by those authors. Kopiosto grants so-called “licenses with an extended effect’, which allows collective rights organisations to grant rights of exploitation not just in the name of their members, but also in the name of other rightsholders who have not opted for the individual management of their rights.

Telia operates a cable television network by which broadcasts of domestic free-to-air television channels are transmitted to the public.

On 24 January 2018, Kopiosto asked the markkinaoikeus (Market Court, Finland) to declare that Telia had retransmitted television broadcasts without proper authorization, by which it violated the copyrights of authors represented by Kopiosto through contractual licensing or mandates. Telia disputed Kopiosto's right to file a copyright infringement action in its own name.

The markkinaoikeus dismissed as inadmissible Kopiosto’s claims alleging copyright infringement on the ground that Kopiosto was not entitled to bring an infringement action in its own name on behalf of rightsholders whom it represents as a contractual licensing organisation. That court also took the view that Kopiosto did not have standing to bring an infringement action on behalf of rightsholders who had granted it an administrative mandate and powers of attorney in respect of their rights.

Kopiosto appealed against that judgment before the Korkein oikeus (Supreme Court, Finland). The Korkein oikeus held that in order to resolve the dispute in the main proceedings, it should be determined under which conditions a collective management organization, within the meaning of Article 3(a) Collective Management DirectiveDirective 2014/26/EU of the European Parliament and of the Council of 26 February 2014 on collective management of copyright and related rights and multi-territorial licensing of rights in musical works for online use in the internal market, may be regarded as having standing to seek the application of the measures, procedures and remedies referred to in Chapter II of the Enforcement DirectiveDirective 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights

the judgment of the ecj

With regard to the first question, the ECJ notes that the referring court asks, in essence, whether Article 4(c) Enforcement DirectiveDirective 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights must be interpreted as meaning that recognition of the status of collective rights-management organisations to request in their own name the application of the measures, procedures and remedies provided for in Chapter II of that directive is subject solely to the capacity of those organisations to be a party to legal proceedings or whether it requires express recognition in the applicable law of those organisations to bring legal proceedings for the purposes of defending intellectual property rights. The aforementioned in addition to the condition relating to the direct interest in the defence of the rights concerned.

The ECJ recalls, with reference to SNB-REACT (C-521/17), that it is apparent from recital 18 Enforcement DirectiveDirective 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights that the EU legislature intended that not only “the holders of intellectual property rights, but also persons who have a direct interest in the defence of those rights and the right to bring legal action, be recognised as persons entitled to seek the application of measures, procedures and remedies, provided for by that directive, in so far as the applicable law allows it and in accordance with that law” (paragraph 28).

Intellectual property collective rights management bodies are recognised in article 4 (c) of the Enforcement DirectiveDirective 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights as persons entitled to request the application of the measures, procedures and remedies provided for in that directive and to seek remedies to protect and enforce, in its own name, the rights of owners of intellectual property rights. This hinges on the condition that the body being deemed to have a direct interest in defending these rights according to national law, which permits them to take legal action for this purpose. The ECJ considers that the words 'applicable law' do not imply that the capacity of intellectual property collective rights-management organisations to seek remedies should be expressly recognised by a specific provision.

EU legislature considered it desirable that not only intellectual property rightsholders, but also collective management organisations which, generally speaking, have resources enabling them effectively to bring legal proceedings be recognized as persons entitled to request the application of the measures, procedures and remedies provided for in that directive.

A restrictive interpretation of Article 4(c) Enforcement DirectiveDirective 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights could however prevent such organisations from seeking, in their own name, the application the measures, procedures and remedies in Member States that have not adopted a provision specifically governing the right of collective management. This could diminish the effectiveness of the means put in place by the EU legislature in order to enforce intellectual property rights.

The ECJ answers the first question by stating that  “Article 4(c) of the Enforcement DirectiveDirective 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights must be interpreted as meaning that, in addition to the condition relating to the direct interest in the defence of the rights concerned, recognition of the status of intellectual property collective rights management bodies to seek, in their own name, the application of the measures. Procedures and remedies provided for in Chapter II of that directive is subject to the standing of those organisations to bring legal proceedings for the purposes of defending intellectual property rights, which may result form a specific provision to that effect or from general procedural rules” (paragraph 39).

By its second question, the referring court asks, in essence, whether Article 4(c) Enforcement DirectiveDirective 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights is to be interpreted as obliging the Member States to recognise that collective management organisations, which are officially recognised as having a right to represent holders of intellectual property rights, have a direct interest in applying, in their own name, for the application of the measures, procedures and remedies provided for in Chapter II of that directive where the existence of a direct interest on the part of those organisations in defending the rights in question does not derive from the applicable national legislation.

The ECJ answers this question in the negative. It considers that “EU law does not govern the conditions in which a collective management organisation must be regarded as having a direct interest in the defence of intellectual property rights and that the ‘provisions of the applicable law’ referred to in Article 4(c) Collective Management DirectiveDirective 2014/26/EU of the European Parliament and of the Council of 26 February 2014 on collective management of copyright and related rights and multi-territorial licensing of rights in musical works for online use in the internal market refer to the national law of the Member States” (paragraph 48). With reference to SNB-REACT (C-521/17), the ECJ notes that it is for the national courts to determine whether a collective management organisation, under the applicable national law, has a direct interest in defending the rights of the proprietors it represents. It should be borne in mind that, in the absence of that condition, no such recognition obligation is incumbent on the Member State concerned.  

The ECJ leaves the third question of the referring court regarding the significance that must be given, in assessing standing to bring proceedings,  to the fact that the organisation concerned also represents authors who have not authorised it to manage their rights and the fact that the organisation’s right to bring an action to defend the rights of such authors is not provided for by law, unanswered.

The ECJ considers “that this question is raised in the event that a collective management organisation is considered to have a direct interest and standing to bring proceedings in its own name in disputes concerning rights covered by extended licenses” (paragraph 52). However, such a premiss does not exist in the present case. EU legislation does not establish the existence of a direct interest for collective management organisations. In addition, it is apparent from the order for reference that under Finnish Law the procedural competence of those organisations is not governed either by a provision specifically incorporated in the applicable national law or by general procedural rules.