AG Szpunar suggests that statutory assignment of performers’ rights against performers’ will is contrary to EU law (C-575/23)

Last month, Advocate General (AG) Szpunar issued his Opinion in case C-575/23, this being the first request for a preliminary ruling on the interpretation of Directive (EU) 2019/790. The referral, which originates from the Belgium's Supreme Administrative Court [see The IPKat here on the national proceedings], concerns the interpretation of Arts. 18 to 23, which govern fair remuneration in exploitation contracts of authors and performers.

Background

The Belgian National Orchestra (ONB) and its musicians have been embroiled in a legal dispute since July 2021. The conflict arose after failed negotiations to establish a collective agreement regarding remuneration for the musicians' performances.

When negotiations broke down, the ONB sought government intervention, which resulted in a Royal Decree issued on June 4, 2021. ONB musicians actively opposed the Royal Decree during the drafting stage, including by signing a memorandum of disagreement prior to its adoption.

The Royal Decree mandated the assignment of musicians' communication to the public, reproduction and distribution rights to the ONB, in exchange for remuneration, the amount of which is set by the Royal Decree.

Several ONB musicians challenged this decree before Belgium's Supreme Administrative Court (Conseil d’État) on July 26, 2021. They argued that forced rights’ assignment breaches various legal provisions, including the Belgian Code of Economic Law and the EU Charter of Fundamental Rights. The ONB countered that the assignment is permissible under Belgian law due to the musicians' status as “agents statuaires”, similar to civil servants. The musicians contend that this interpretation discriminates against statutory performers, potentially violating EU copyright directives.

Under these conditions, the Supreme Administrative Court requested the Court of Justice of the European Union (CJEU) to clarify whether: (1) such unilateral assignment of performers’ rights by ways of a statutory act would be contrary to Arts. 18 to 23 of Directive (EU) 2019/790; and (2) whether the Directive is as such applicable to the Royal Decree that was adopted before 7 June 2021, this being the deadline for the national transpositions of the Directive.

AG Opinion

First, AG suggested that the CJEU should reformulate the questions it received from the Belgian court. This is because provisions of the Belgian Code of Economic Law, which are invoked in the national proceedings, transpose into Belgian law, in respect of performers, Arts. 2 and 3 of Directive 2001/29 as well as Arts. 3 and 7 to 9 of Directive 2006/115.

Thus, rather than merely focusing on Directive (EU) 2019/790, the AG proposed to consider whether:

Article 2(b) and Article 3(2)(a) of Directive 2001/29, Article 3(1)(a), Article 7(1), Article 8(1) and Article 9(1)(a) of Directive 2006/115 as well as Articles 18 to 23 of Directive 2019/790 must be interpreted as precluding the assignment by regulation, in favour of the employer, of the related rights of performers who are statutory agents, for performances carried out in the context of the employment relationship.

Conformity with Directive 2001/2 and Directive 2006/115

The AG first reminded that, in light of international treaties and the EU acquis, performers’ rights are exclusive rights and not remuneration rights. This means that employed performers, including those employed under the status of public agent, shall have the right to oppose actually and effectively the exploitation of their performances without their consent.

The AG further opined that the CJEU’s jurisprudence on the presumption of consent [see The IPKat here] is not applicable in the case at hand: it is common ground in the national proceedings that the ONB musicians opposed the assignment and the Royal Decree.

The AG thus suggested the CJEU to answer that a statutory assignment of performers’ rights without a prior consent of those performers or of their representatives is contrary to Directives 2001/29 and 2006/115. At the same time, the AG pointed out that a statutory assignment of rights with a prior consent of those performers would not be contrary to EU law.

Temporal application of Arts. 18 to 23 Directive (EU) 2019/790

Under Art. 26 Directive (EU) 2019/790, the Directive shall apply in respect of all works and other subject matter that are protected by national law in the field of copyright on or after 7 June 2021. This shall be without prejudice to any acts concluded and rights acquired before 7 June 2021.

To answer the second part of the request, the AG examined the notion of “rights acquired”. In the opinion of the AG, that concept should not be given too broad an interpretation, so as not to affect the effectiveness of the Directive (para. 55). The AG suggested that the concept of “acquired rights” shall only cover the rights that existed before 7 June 2021, that is, the rights to the performances that occurred before that date (para. 57).

Applicability of Arts. 18 to 23 Directive (EU) 2019/790 to public servants

The Belgian court also doubted whether the Directive’s provisions on fair remuneration in exploitation contracts of authors and performers are applicable to employment contracts, and more specifically to contracts of public agents.

In this regard, the AG noted that the Directive broadly speaks of a “contract”, a concept that must be understood to cover any licensing of exploitation or transfer of exclusive rights (para. 62). The AG reminded that a different interpretation would deprive the Directive of its effectiveness. Thus, Arts. 18 to 23 of the Directive are also applicable to situations such as the one at issue in the national proceedings, where public agents perform under an employment contract.

Comment

While the overall ruling in C-575/23 will have an undeniable impact on performers’ rights in the EU, this Kat especially notes the AG’s reflections on the applicability of Arts. 18 to 23 ratione temporis. If the CJEU follows the reasoning suggested by the AG, authors’ and performers’ rights under Arts. 18 to 23 (including the right to claim additional remuneration as per Art. 20, or the right to rescind the contract, as per Art. 22) would be applicable to acts (such as orchestra performances) that took place after 7 June 2021, even if they are governed contracts that were signed before Directive (EU) 2019/790 was applicable.