A little ephemera for World IP Day

What better way to celebrate World IP Day can there be than to report on the latest intellectual property ruling of the Court of Justice of the European Union in Case C‑510/10 DR, TV2 Danmark A/S v NCB - Nordisk Copyright Bureau, a reference for a preliminary ruling from the Østre Landsret (Denmark)?

DR was a public radio and television broadcasting organisation which was required to provide public service programming as an independent public institution financed by the audiovisual licence fee, and TV2 Danmark was a commercial public television broadcasting organisation, financed by advertising, which was also required to provide public service programming. Their programmes were either produced internally or created by third parties under specific agreements with a view to being broadcast for the first time by DR or TV2 Danmark. NCB administered the rights to record and copy music for composers, songwriters and music publishers in a number of Nordic and Baltic States.

What the parties wanted to know was whether the exception for ephemeral recordings under copyright law also covered recordings made by legally independent external television production companies where those recordings were commissioned from them by DR or by TV2 Danmark for initial broadcast on DR or TV2 Danmark. According to DR and TV2 Danmark, it was irrelevant to copyright holders whether recordings for purposes of transmission were made by the staff of thea broadcasting organisation itself with its own equipment, or by an employee of a third company from which the broadcasting organisation commissioned the production, with that third company’s equipment. They also argued that there was no condition in Paragraph 31 of the Danish Law on Copyright to require broadcasting organisations to make recordings ‘by means of their own facilities’. Thus, under Danish law, it didn' tmatter,  for the application of the exception concerning recordings for the purpose of transmission, whether those recordings were made by employees of the broadcasting organisation or by employees of third parties. NCB however argued that European Union law imposed a condition relating to production ‘by means of their own facilities’, this condition being applicable under the Danish Law on Copyright. The Østre Landsret (Eastern Regional Court) decided at this point that it was better to refer the following questions to the Court of Justice for a preliminary ruling than to become increasingly baffled by these arguments. Accordingly it asked::

‘1. Should the terms “by means of their own facilities” in Article 5(2)(d) of [Directive 2001/29 -- the InfoSoc Directive] and “on behalf of and under the responsibility of the broadcasting organisation” in recital 41 in the preamble to that directive be interpreted with reference to national law or to European Union law? 

2. Should it be assumed that the wording of Article 5(2)(d) of [Directive 2001/29], as in the Danish, English and French versions of that provision, is to mean “on behalf of and under the responsibility of the broadcasting organisation” or, as in the German version, is to mean “on behalf of or under the responsibility of the broadcasting organisation”? 

3. On the assumption that the terms cited in Question 1 are to be interpreted with reference to European Union law, the following question is asked: What criteria should national courts apply to a specific assessment as to whether a recording made by a third party (the “Producer”) for use in a broadcasting organisation’s transmissions was made “by means of their own facilities”, and “on behalf of [and/or] under the responsibility of the broadcasting organisation”, such that the recording is covered by the exception laid down in Article 5(2)(d) of [Directive 2001/29]?  

In connection with the answer to Question 3, answers are sought in particular to the following questions: 

(a) Should the concept of “own facilities” in Article 5(2)(d) of [Directive 2001/29] be understood to mean that a recording made by the Producer for use in a broadcasting organisation’s transmissions is covered by the exception laid down in Article 5(2)(d) only if the broadcasting organisation is liable towards third parties for the Producer’s acts and omissions in relation to the recording, as if the broadcasting organisation had itself carried out those acts and omissions? 

(b) Is the condition that the recording must be made “on behalf of [and/or] under the responsibility of the broadcasting organisation” satisfied where a broadcasting organisation has commissioned the Producer to make the recording in order that that broadcasting organisation can transmit the recording in question, and on the assumption that the broadcasting organisation concerned has the right to transmit the recording in question? 

The Østre Landsret seeks to ascertain whether the following situations may or must be taken into consideration for the purpose of answering Question 3(b), and if so, what weight should be given to them: 

i. Whether it is the broadcasting organisation or the Producer which has the final and conclusive artistic/editorial decision on the content of the commissioned programme under agreements between those parties;  

ii. Whether the broadcasting organisation is liable towards third parties in respect of the Producer’s obligations in relation to the recording, as if the broadcasting organisation itself had carried out those acts and omissions;  

iii. Whether the Producer is contractually obliged by the agreement with the broadcasting organisation to deliver the programme in question to the broadcasting organisation for a specified price and has to meet, out of this price, all expenses that may be associated with the recording; 

iv. Whether it is the broadcasting organisation or the Producer which assumes liability for the recording in question vis-à-vis third parties. 

(c) Is the condition that the recording must be made “on behalf of [and/or] under the responsibility of the broadcasting organisation” satisfied in the case where a broadcasting organisation has commissioned the Producer to make the recording in order for the broadcasting organisation to be able to transmit the recording in question, and on the assumption that the broadcasting organisation in question has the right to transmit the recording, where the Producer, in the agreement with the broadcasting organisation relating to the recording, has assumed the financial and legal responsibility for 

(i) meeting all the expenses associated with the recording in return for payment of an amount fixed in advance; 

(ii) the purchase of rights; and 

(iii) unforeseen circumstances, including any delay in the recording and breach of contract, but without the broadcasting organisation being liable towards third parties in respect of the Producer’s obligations in relation to the recording as if the broadcasting organisation had itself carried out those acts and omissions?’

If you're not lost by now, you jolly well ought to be.  The Court of Justice might have been a bit baffled too, but it ruled today as follows:

"1. The expression ‘by means of their own facilities’ in Article 5(2)(d) of Directive 2001/29 ,,, must be given an independent and uniform interpretation within the framework of European Union law. 

2. Article 5(2)(d) of Directive 2001/29, read in the light of recital 41 in the preamble to that directive, must be interpreted as meaning that a broadcasting organisation’s own facilities include the facilities of any third party acting on behalf of or under the responsibility of that organisation. 

3. For the purposes of ascertaining whether a recording made by a broadcasting organisation, for its own broadcasts, with the facilities of a third party, is covered by the exception laid down in Article 5(2)(d) of Directive 2001/29 in respect of ephemeral recordings, it is for the national court to assess whether, in the circumstances of the dispute in the main proceedings, that party may be regarded as acting specifically ‘on behalf of’ the broadcasting organisation or, at the very least, ‘under the responsibility’ of that organisation. As regards whether that party may be regarded as acting ‘under the responsibility’ of the broadcasting organisation, it is essential that, vis-à-vis other persons, among others the authors who may be harmed by an unlawful recording of their works, the broadcasting organisation is required to pay compensation for any adverse effects of the acts and omissions of the third party, such as a legally independent external television production company, connected with the recording in question, as if the broadcasting organisation had itself carried out those acts and made those omissions".

The IPKat was hoping that this might have been one of those cases the importance of which was summarised in a Curia press release. As it is, the hour is late and the Kat has little to say, other than that the words “by means of their own facilities” appear to have been interpreted broadly and in terms that reflect commercial reality -- a mode of interpretation that national courts may wish to consider carefully when deciding how to determine the parameters of copyright.