The matter at hand
The question referred to the ECJ in this case concerns French legislation regarding the exploitation of audiovisual archives by the INA, a publicly owned commercial body of the French State responsible for conserving and promoting the national audiovisual heritage. In that capacity, it keeps the audiovisual archives of national broadcasting companies and helps with the exploitation of those archives. In order to facilitate the INA’s task, the French legislation provides for a rebuttable presumption that the performer has authorised the fixation and exploitation of his performances by the INA, where that performer is involved in the recording of an audiovisual work so that it may be broadcast.
The question arose in proceedings brought by the successors in title of ‘ZV’, a musician who died in 1985, regarding the marketing by INA, in its online shop, of video recordings and phonograms reproducing ZV’s performances. Those video recordings and phonograms had been produced and then broadcast by national broadcasting companies.
The cour d’appel de Versailles (Court of Appeal, Versailles, France), to which the case had been referred back after a first round up to the Cour de cassation (Court of Cassation, France), dismissed the successors’ claims for a compensation. This decision was appealed again to the cour d’appel de Versailles, supported by Spedidam, a collective management organisation for musical performers, which had intervened voluntarily. Having doubts as to the compatibility of the French legislation with Article 2(b), Article 3(2)(a) and Article 5 of the Copyright DirectiveDirective 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, that court referred the matter to the ECJ.
The judgment of the ECJ
The ECJ starts by considering that the performer’s protection is not limited to the enjoyment of the rights guaranteed by Article 2(b) and Article 3(2)(a) of the Copyright DirectiveDirective 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, but also extends to the exercise of those rights in that any act of exploitation requires prior consent. In addition, the ECJ recalls that in Soulier & Doke (C‑301/15) it has already held, with regard to authors’ exclusive rights, that those provisions do not require such consent to necessarily be expressed in writing or explicitly, but “also allow the consent to be expressed implicitly, provided (…) that the conditions under which implicit consent may be accepted are strictly defined, in order not to deprive the very principle of prior consent of any effect” (paragraph 40).
Returning to the French legislation at issue, the ECJ rules that “a performer who is himself involved in the making of an audiovisual work so that it may be broadcast by national broadcasting companies, and who is thus present at the place where such a work is recorded for those purposes, first, is aware of the envisaged use of his performance (…) and, second, gives his performance for the purposes of such use, with the result that it is possible to take the view, in the absence of evidence to the contrary, that he has, as a result of that involvement, authorised the fixation of that performance and its exploitation” [paragraph 42].
The ECJ furthermore holds that the rebuttable presumption in the French legislation enables a “fair balance of rights and interests between different categories of rightholders” which requires that performers, to be able to continue their creative and artistic work, have to receive an appropriate reward for the use of the fixations of their work, as must producers in order to be able to finance that work (paragraph 44). Considering that the INA does not have written authorisations of the performers or their successors in title at its disposal, the ECJ holds that requiring written consent would make it impossible for the INA to exploit part of its collection, and would, as a result, be detrimental to the interests of other rightholders, such as directors, producers and other performers.
The ECJ does, however, emphasize that “[s]uch a presumption cannot, in any event, affect a performer’s right to obtain appropriate remuneration for the use of fixations of their performances” (paragraph 45).