European Business Law, the fourth volume in our series, shows how the European authorities simultaneously abolish all restrictions on access to and exercise of economic activities and support the growth of domestic markets, through the harmonization the internal legislation or the enactment of genuinely unified regulations.

European Business Law

Authors and performers must benefit from a system which guarantees a true right to equitable remuneration. In all events, they retain a right to obtain an equitable remuneration, even if the rental right has been transferred or assigned (Article 5(1) of Directive No 2006/115). They cannot waive that right (Article 5(2)) and they may entrust the administration of their right to remuneration to coll …

Equitable remuneration

Authors and performers must benefit from a system which guarantees a true right to equitable remuneration. In all events, they retain a right to obtain an equitable remuneration, even if the rental right has been transferred or assigned (Article 5(1) of Directive No 2006/115). They cannot waive that right (Article 5(2)) and they may entrust the administration of their right to remuneration to collecting societies representing them (Article 5(3)). 

Likewise, a single equitable remuneration is to be paid by the phonogram user if a phonogram published for commercial purposes, or a reproduction of such phonogram, is used for broadcasting by wireless means or for any communication to the public . The remuneration is shared between the relevant performers and phonogram producers . In the absence of agreement between them, Member States may lay down the conditions as to such sharing (Article 8). In the absence of any European definition of equitable remuneration paid by the phonogram user, it is for each Member State to determine in its own territory the most appropriate criteria for enabling a proper balance to be achieved between the interests of performing artists and phonogram producers in obtaining that remuneration, and the interests of third parties in being able to broadcast the phonogram on terms that are reasonable . The calculating method, which gives preference to a contractual agreement based on objective criteria and, in the event that negotiations fail, agrees to appeal to the national court assisted by an expert, has been held to comply with the requirement of equitable remuneration . 

Like performers (Article 8(1)), broadcasting organizations have the exclusive right to authorize or prohibit the rebroadcasting of their broadcasts by wireless means, as well as the communication to the public of their broadcasts if such communication is made in places accessible to the public against payment of an entrance fee (Article 8(3)). According to the Court, the communication to the public of television and radio broadcasts by means of TV sets installed in hotel rooms does not fall within the scope of the exclusive right of broadcasting organizations provided for in Article 8(3) .

Lastly, Member States may derogate from the exclusive right in respect of public lending, provided that authors obtain a remuneration for such lending (Article 6(1)). The public lending exception applies to the making available by a public library of a digital copy of a book provided that that copy was not obtained from an illegal source . The rule is also valid for phonograms, films and computer programs (Article 6(2)). However, “certain categories of establishments” may be exempted from the remuneration obligation (Article 6(3)). The Court of Justice strictly interprets that derogation to the exclusive right. The main purpose of the directive being to guarantee adequate income to authors or performers and to recoup investments required particularly for the production of phonograms and films (recital 5), a national law cannot lead to total exemption . A Member State which is not capable of determining the relevant criteria for drawing a valid distinction between categories of establishments, has no other choice but imposing on all the obligation to pay the remuneration .

The communication to the public of a recording does not give rise to a single equitable remuneration in the case of an audiovisual recording, which cannot be classified as a phonogram or reproduction of a phonogram:  Case C-147/19 Atresmedia Corporacion de Medios de Comunicacion (SA), Judgment of 18 November 2020, LawLex202100004713JBJ.

Case C-265/19 Recorded Artists Actors Performers Ltd v Phonographic Performance (Ireland) Ltd, Judgment of 8 September 2020, LawLex202100004736JBJ, which restates that under Article 8(2) of Directive No 2006/115, the right to a  single equitable remuneration may not be limited in  such a way that only the producer of the phonogram receives  remuneration, without sharing it with the performer who has contributed  to that phonogram.

Case C-245/00 SENA [2003] ECR I-1251, LawLex200900000917JBJ.

Case C-641/15 Verwertungsgesellschaft Rundfunk GmbH, Judgment of 16 February 2017, LawLex201700000334JBJ. 

Case C-174/15 Vereniging Openbare Bibliotheken, Judgment of 10 November 2016, LawLex201600002117JBJ, stating that EU law does not preclude a Member State from providing that the system of remuneration of authors in the event of public lending of their works only applies to the making available by a public library of a digital copy of their works on condition that the digital copy must have been put into circulation by a first sale or other transfer of ownership of that copy in the European Union by the holder of the right of distribution to the public or with his consent.

Case C-175/05 Commission v Ireland [2007] ECR I-3*, Summ.pub., LawLex200900002222JBJ.

Case C-175/05 Commission v Ireland [2007] ECR I-3*, Summ.pub., LawLex200900002222JBJ. See, along the same lines, for a Member State having encountered difficulties in drawing a distinction based on cultural or educational grounds within the group of establishments accessible to the public represented by public libraries and media libraries, school and university libraries and public documentation centers: Case C-433/02 Commission v Belgium [2003] ECR I-12191, LawLex200900002200JBJ.

European Business Law

268. Equitable remuneration

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Les décisions de justice citées dans ce paragraphe :

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268. Equitable remuneration

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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au contenu exclusif Livv – juristes d’entreprise