Reproduction of musical works – Copyright – Collective management organizations

On the last 24/11/2011 the European Court of Justice intervened once again in the matter of copyright, this time in particular giving interpretation to the notion of “communication of a work to a public”. That, in this specific case, in order to decide on the legitimacy of an obligation to pay to a collective management organization which handles copyright the relevant fees arising from the use of protected works and that are related to those rights.

In this regard, the Court has made an important distinction between communication to a public that is present at the place where the communication itself originates (“direct communication”), and the communication to a public not present at that place (“indirect communication”).

The matter has particular interest because concerns the possibility for a private, in particular situations, to agree with the holder of the copyright the assignment of the rights related to the use and the reproduction of the musical works protected and to pay the relevant proprietary rights directly – and only – to the holder himself. Then, without the obligation to pay in any case the fees also to the collective management organization which handles the copyright.

The case has arisen on the basis of the request of payment demanded by the collective management organization (in this specific case, Rumanian) towards a circus, because the latter, on the occasion of its performances, publicly disseminated for commercial purposes musical works protected by copyright, but it had not paid the relevant fees that the said organization considered due as per law. On his side, the circus defended itself responding to have entered into specific agreements with the respective authors of the musical works used and to have already paid to those authors, and in appropriate measure, the fees related to the copyright. But both at first instance and on appeal the circus has been ordered to pay the due fees to the collective management organization, since the Rumanian law, as interpreted by the national judges, would provide that the exercise of the right to communicate musical works to the public for commercial purposes has to be managed collectively. Hence, the appeal filed by the circus before the Rumanian Supreme Court and the subsequent intervention of the EU judges.

The discipline subject of the interpretation of the EU Court has been the Directive 2001/29/EC (on the harmonization of certain aspects of copyright and related rights in the information society), the Rumanian law that implemented the Directive itself, the Berne Convention for the protection of literary and artistic works (Paris, 1971 and subsequent amendments).

The Court has noticed that the Rumanian law of implementation of the said Directive provides that the holders of the copyright can exercise those rights as well as those related to them, either individually or, on the basis of an authorization, through collective management organizations. But, with reference to the right to communicate musical works to the public, this right would be actually subjected, compulsorily, to the collective management and the Rumanian law would consider communications to public also “stage or film presentation, acting or recitation, or any other public means of directly performing or presenting a work”. Moreover, in those cases, the collective management organizations would be entitled by the national law to represent also those authors who have not granted to them any authorization. As consequence, the EU judges noticed that the Rumanian law, on one side, would not allow the authors to exclude their own musical works from the collective management and, on the other side, it would impose to the users of the musical works the request of a license (not exclusive) and the payment – to the organization itself – of the related fees.

The EU Court, wondering on the contents of the Directive 2001/29/EC and on the conformity of the Rumanian law to the community law, has furnished a community oriented interpretation of the notion “communication to a public” mentioned in the Directive. The Court has specified that this notion does not include the so called direct public representations and performances that are those by the means of which the works are spread to a public that is in direct physical contact with either the author, or the performer of the works themselves. On contrary, this notion has to make reference to the hypothesis of communication to a “public not present at the place where the communication originates”.

The immediate consequence that arises from this interpretation is that the “conventional forms of communication to the public, such as the live presentation or performance of a work”, must not be subjected to the discipline of the Directive 2001/29/EC, but to the Berne Convention (above mentioned) that gives to the authors of the musical works the exclusive right to authorize the public performance of their works (art. 11). The further consequence is that the eventual national laws issued by the Member States in order to implement the Directive 2001/29/EC that imposed limitations and obligation not provided for by the Directive (as in this case about the mandatory obligation of collective management of the copyright for musical works) would be a too harsh and illegitimate limitation on contractual freedom that is against the principles, interests and goals of the community law.