DEEMED MANAGEMENT IS FINE, SAYS ECJ; WITHOUT FRONTIERS, WITH TEARS

Deemed management is fine, says ECJ

Today's hot news from Luxembourg is the European Court of Justice ruling in Case C-169/05, Uradex SCRL v Union Professionnelle de la Radio et de la Télédistribution (RTD) and Société Intercommunale pour la Diffusion de la Télévision (BRUTELE on a reference for a preliminary ruling from the Cour de Cassation, Belgium.

Uradex, a collecting society for performers' rights, sought a ruling that, by retransmitting by cable the performances of artists within its catalogue but without their permission the member cable operator companies infringed those rights. Its application for injunctive relief was dismissed by the trial court, so Uradex appealed to the Cour d’appel. That court condsidered that, although Uradex had the exclusive right to authorise or prohibit retransmission by cable, that right was, nevertheless, limited to the rights whose management was specifically transferred to it. According to the court, Article 53(2) of the Belgian Law, which implemented Article 9(2) of the Directive (Council Directive 93/83 on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission), 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. Article 53(2) provided only that the society is "deemed to be mandated to manage their rights" which, in view of the essentially fiduciary nature of such management, only means the right to collect remuneration to which such performances give rise and to pass it on to the holder of the rights pertaining to those performances.

The Cour d’appel also held that, as 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 had transferred the management of their rights to it. That provision establishes a legal presumption that the artist has assigned his retransmission right to the producer. A collecting society, however, acting on behalf of the artists and performers whom it represents, cannot manage more rights than are held by those artists and performers. Authorisation from Uradex is thus required 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 - which was not the case here. The court then held that BRUTELE, by transmitting non-audiovisual performances, infringed the rights of the artists and performers who had transferred the management of those rights to Uradex, but dismissed the remainder of the appeal.

Uradex appealed to the Cour de Cassation, which decided to stay the proceedings and to refer the following question to the Court for a preliminary ruling:

"Must Article 9(2) ... 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 does not have the power to exercise that rightholder’s right to grant or refuse authorisation to a cable operator for cable retransmission, since it is mandated only to manage the pecuniary aspects of that rightholder’s rights?".

This morning the ECJ delivered its response:

"Article 9(2) ... 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’s 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".

The IPKat is sure that not only Uradex but plenty of other collecting societies must be heaving a sigh of relief at this point. Whether the decision is right or wrong (and the IPKat thinks it's right), it certainly keeps the collection of royalties a smoother, less bureaucratic affair than would have been the case if the broadcasters had won. Merpel agrees, but is left with the slightly uncomfortable feeling that Uradex is a pharmaceutical product you take for a slightly embarrassing condition.


Without frontiers, with tears ...

The IPKat has just read this Press Release from the Confederation of British Industry, issued yesterday. In relevant part, it states:

"Seven organisations representing over half a million businesses in the UK, Germany, Holland, Denmark, Hungary, Luxembourg and Switzerland have launched a joint paper ... objecting to new rules contained in the EU ‘TV Without Frontiers’ (TVWF) Directive, ahead of a European Parliamentary meeting ...

The EU plans to extend existing regulations covering traditional broadcasters to all online audio-visual content, wherever and whenever it is downloaded or broadcast. The pan-European submission argues that TVWF as drafted would shoehorn digital content providers into rules designed for traditional broadcasters, undermining high-value, high-tech economic growth when it should be stimulating it.

CBI Deputy Director-General, John Cridland said:

“As drafted, this onerous Directive will stifle economic growth, inhibit job creation and hamper the development of digital content and services across the EU. These new rules create unnecessary and unwanted red tape and duplicate well-regarded existing laws that already cover online service providers.

"If they approve this, MEPs and EU ministers risk shooting themselves in the foot by undermining the goal of promoting an 'open and competitive digital economy' under the European Commission's i2010 programme. There is little in this Directive to help Europe's businesses compete in the fast-moving, highly competitive world of interactive digital services, broadcasting and advertising. Future European jobs are on the line."

By virtue of being web-based, these new forms of media do not transmit within the same borders or at the same allotted times as traditional TV channels. Many companies are developing exciting and innovative ways of reaching customers, such as using online TV shows or creating web-based interactive communities.

John Cridland continued:

"Business is finding innovative ways of communicating and engaging with customers. Soon, car companies will let you choose the colour, style and specification of a vehicle before you buy and take it for a test drive online. New mothers will be able to watch videos on product websites that offer childcare and safety demos. Video blogs, podcasts or clips downloaded to a mobile phone will also become more prevalent.

"We should not stifle the creativity that helps keep Europe's business one step ahead of the competition. The Internet is subject to the full force of globalisation like no other industry or sector and Brussels must adopt a more flexible, innovative and pro-growth approach or companies will shift marketing spend to non-European countries.

"New forms of online media are still evolving and need time to develop. The EU should heed its own principles of better regulation and allow a self-regulatory approach to work before shackling an industry that needs to keep pace with rapid technological change. European businesses are at the cutting-edge of ensuring their customers are protected on the Internet and self-regulatory systems have been proven to be responsive to change and effective in resolving problems"".

The IPKat concurs with this sentiment, though he can see why the Commission is aiming at imposing controls: it's the first step towards turning the apparently random delivery of audio-visual materials into neat little packages that can be monitored, regulated and taxed. Merpel adds, the more we regulate any form of information flow through the internet, the lower is our moral high ground when we object to repressive regimes doing likewise.

Text of Draft Directive here
Comment on Euractiv here
Frontiers without television here