[A2k] Collecting societies' power (even when artists have not transferred their rights)

[Manon Ress]

The European Court of Justice and the Court of First Instance has
recently issued a decision regarding the scope of powers of a
collecting society when the artists have NOT asked to be "managed".
Quote from the judgment below
Manon

see
http://www.ipr-helpdesk.org/controlador/noticia?
seccion=3Dnoticia&tipoListado=3Dall&id=3D0000005934&len=3Den&mode=3Dsubscri=
ption

The Judgment of 1st June 2006, C-169/05, "Uradex v. RTD and BRUTELE",
on the Directive 93/83 on copyright of satellite broadcasting is
about the scope of the powers of a collecting society deemed to be
mandated to manage the rights of a copyright owner or holder of
related rights which has not transferred the management of his rights
to it and the exercise of the right to grant or refuse permission to
a cable operator to retransmit a programme by cable)

http://europa.eu.int/jurisp/cgi-bin/form.pl?
lang=3Den&Submit=3DSubmit&alldocs=3Dalldocs&docj=3Ddocj&amp=
;amp;
amp;amp;amp;amp;amp;docop=3Ddocop&docor=3Ddocor&docjo=3Ddocjo&numaff=3DC-16=
9/05&
datefs=3D&datefe=3D&nomusuel=3D&domaine=3D&mots=3D&resmax=3D100

SNIP

12     With regard to performances both audiovisual and non-
audiovisual, the Cour d=92appel first took the view that although the
collecting societies managing the related rights have the exclusive
right to authorise or prohibit their retransmission by cable (=91the
retransmission right=92), that right is, nevertheless, limited to the
rights whose management has been transferred to the societies.

13     According to the Cour d=92appel, Article 53(2) of the Law, which
transposes Article 9(2) of the Directive, does not provide that the
collecting society exercises the right of artists who have not
mandated it to manage their rights to authorise or prohibit cable
retransmission, as is the case, given Article 53(1) of the Law, for
artists who have done so.

14     Article 53(2) of the Law provides only that the society is
=91deemed to be mandated to manage their rights=92 which, in view of the
essentially fiduciary nature of such management, essentially
consists, in reality, in collecting the remuneration to which such
performances give rise and in passing it on to the holder of the
rights pertaining to those performances.

15     In addition, the Cour d=92appel took the view that, with regard
to audiovisual performances, Uradex cannot, having regard to Article
36 of the Law, exercise the cable retransmission right even in
respect of the artists who transferred the management of their rights
to that society. That provision establishes a legal presumption that
the artist has assigned his retransmission right to the producer. A
collecting society works on behalf of the artists and performers whom
it represents and cannot manage more rights than are held by those
artists and performers. Authorisation from Uradex is thus required
only if, in accordance with Article 36 of the Law, it rebuts that
presumption by showing the existence of agreements between the
artists concerned and the producers excluding any assignment of the
retransmission right or, failing that, if it represents producers of
audiovisual work. That is not the case here.

16     It follows from the foregoing that the Cour d=92appel granted
the appeal only in part. On the one hand, it held, in particular,
that BRUTELE, by transmitting non-audiovisual performances, is in
breach of the related rights of the artists and performers who
transferred the management of those rights to Uradex and,
consequently, the Cour d=92appel ordered it to cease those
retransmissions unless it had authorisation from Uradex. On the other
hand, it dismissed the remainder of the appeal.

17     Uradex brought a further appeal before the Cour de cassation
(Court of Cassation) claiming, with regard first to the related
rights whose holders have not transferred their management to it,
that it follows from Article 53 of the Law and from Article 9 of the
Directive that a collecting society is not only deemed to be mandated
in respect of management limited to the collection of remuneration,
but that those articles also give it the right of retransmission. In
addition, according to Uradex, that society exercises such a right
even with regard to audiovisual performances, since those articles
make no distinction according to whether or not the retransmission
right has been assigned to a third party.

snip
On those grounds, the Court (Third Chamber) hereby rules:

Article 9(2) of Council Directive 93/83/EEC of 27 September 1993 on
the coordination of certain rules concerning copyright and rights
related to copyright applicable to satellite broadcasting and cable
retransmission is to be interpreted as meaning that, where a
collecting society is deemed to be mandated to manage the rights of a
copyright owner or holder of related rights who has not transferred
the management of his rights to a collecting society, that society
has the power to exercise that rightholder=92s right to grant or refuse
authorisation to a cable operator for cable retransmission and,
consequently, its mandate is not limited to management of the
pecuniary aspects of those rights.

END of QUOTE

See also Directive 93/83
http://europa.eu.int/smartapi/cgi/sga_doc?smartapi!celexplus!prod!
DocNumber&lg=3Den&type_doc=3DDirective&an_doc=3D1993&nu_doc=3D83
EU summary of legislation
http://europa.eu.int/scadplus/leg/en/lvb/l26031.htm

************************************************
Manon Anne Ress
manon.ress@cptech.org,
www.cptech.org

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