The purpose of this article is to analyse the content of the judgment issued by the Court of Justice of the European Unión (CJEU) in case C-147/19. The conflicting parties of the dispute are, on one hand the entities Association of Management of Intellectual Assets (Asociación de Gestión de Derechos Intelectuales – AGEDI) and Artists, Performers or Producers, Spanish Management Company (Artistas, Intérpretes o Ejecutantes, Sociedad de Gestión de España – AIE), which are both entities that that manage the intellectual property rights of phonogram producers and such rights of performers. The defendant is Atresmedia Corporación de Medios de Comunicación, S.A. (Atresmedia – owner of a number of television channels).
The claim filed by the plaintiffs is for compensation for carrying out communications to the public and the reproduction of synchronised phonograms in films broadcast by the television channels belonging to Atresmedia. For its part, the defendant denies that it has to pay any amount on its understanding that a phonogram ceases to be a phonogram once it is synchronised (incorporated into a work), as long as it is exploited together with the audio-visual work of which it forms a part, that is to say, not as an independent concept.
In order to resolve this conflict, the Spanish Supreme Court raised two questions before the CJEU in a preliminary consultation:
- What interpretation should be given to the notion of “reproduction of a phonogram published for commercial purposes” as per article 8 of Directive 2006/115 of 12th December 2006 and, in particular, whether the reproduction of a phonogram published for commercial purposes in an audio-visual recording containing the fixation (incorporation) of an audio-visual work is deemed as included; and
- whether, if this is the case, an obligation arises to pay a single equitable remuneration on the part of those who carry out such acts of communication to the public.
Atresmedia complied with the requirements of authorisation and payment of remuneration to the author in order to incorporate the author’s work (phonogram), into the corresponding audio-visual work. The problem lies in determining whether the communication to the public by Atresmedia of an audio-visual work containing said phonogram generates a right to remuneration for the authors of the work.
The first obstacle resolved by the CJEU is deciding whether the matter involves a phonogram or not. After analysing legal provisions such as the Rome Convention of 1961, which establishes that a phonogram is any «exclusively aural» fixation of the sounds of a performance or of other sounds, the Supreme Court concludes that a phonogram cannot be considered to be a fixation of images and sounds, as it is not “exclusively” aural. The phonogram remains as it is; but while it is synchronised or incorporated into the audio-visual work and for the purposes of the performance of the latter, it is not deemed as such. This is without prejudice to the rights held by the author of the phonogram in the event of its use independently of the audio-visual work.
The controversy continues regarding the concept of reproduction of the phonogram in article 8.2 of the Directive which reads as follows: “Member States shall provide a right in order to ensure that a single equitable remuneration is paid by the 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, and to ensure that this remuneration is shared between the relevant performers and phonogram producers….”
Given that incorporating the phonogram into the audio-visual work makes it lose the notion of phonogram and consequently it is not a reproduction of the phonogram. Therefore, the ECJ concludes that article 8.2 of Directive 2006/115 does not require the user to pay a «single equitable remuneration» to the holder or holders of rights over the phonogram incorporated where the audio-visual work is «communicated to the public». Therefore, the court ruled in favour of the defendant.
Jaime Madero
Vilá Abogados
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3rd of December 2020
