The Advocate General of the European Court G. HOGAN has issued it opinion in case C‑484/18 Société de perception et de distribution des droits des artistes-interprètes de la musique et de la danse (Spedidam), PG, GF v Institut national de l’audiovisuel.

The case concerns the following:

The INA is a commercial State body established by law in 1974. It is responsible for conserving and promoting the national audiovisual heritage. It keeps the audiovisual archives of ‘national broadcasting companies’ (national radio and television stations) and helps with their exploitation.

As I have already observed, PG and GF are the two sons and successors in title of ZV, a world-famous jazz drummer. They allege that the INA marketed on its website without their authorisation 26 video recordings and a phonogram reproducing performances by their late father. They brought an action based on Article L. 212-3 of the Intellectual Property Code, under which a written authorisation of the performer is required for the fixation of its performance, its reproduction and its communication to the public.

The INA pleads in response that Article 49(II) of the Law on freedom of communication allows it to exploit the archives in return for paying performers royalties set by collective agreements concluded with their representative trade unions. PG and GF counter in turn, inter alia, that these statutory provisions which derogate from the protection of performers conflict with the provisions of Directive 2001/29.

By judgment of 24 January 2013, the tribunal de grande instance de Paris (Regional Court, Paris, France) ordered the INA to pay PG and GF the sum of EUR 15 000 in compensation for the damage suffered as a result of the unauthorised exploitation of the interpretations in question. By a judgment of 11 June 2014, the cour d’appel de Paris (Court of Appeal, Paris, France) confirmed in substance the judgment delivered at first instance.

In particular, these two courts considered that the application of Article 49(II) of the Law on freedom of communication was subject to the prior authorisation of the performer, whereas proof of such authorisation would not have been provided by the INA.

However, by judgment of 14 October 2015, the Cour de Cassation (Court of Cassation) overturned the judgment of the cour d’appel (Court of Appeal). It ruled that the cour d’appel (Court of Appeal) erred in holding that the application of the derogating regime was subject to proof that the performer had authorised the first exploitation of his performance, thus adding to the law a condition that it did not include. Following this judgment, the cour d’appel de Versailles (Court of Appeal, Versailles, France), at the request of the INA, dismissed the claims for compensation which had been brought against it.

Having heard the appeal brought by the successors in title against the latter judgment, the Cour de Cassation (Court of Cassation) entertained doubts about the compatibility with EU Law of the French legislation and the interpretation of various provisions of Directive 2001/29.

According to the Cour de Cassation (Court of Cassation), the special regime enjoyed by the INA does not fall within any of the exceptions and limitations to the rights referred to in Articles 2 and 3 of Directive 2001/29, provided for in Article 5 of the directive. The Cour de Cassation (Court of Cassation) is also of the opinion that the solution adopted by the Court in Soulier and Doke ( ) is not applicable to the present case. That latter case concerned the reproduction of out of print books. While it is true that the legislation on out of print books at issue in Soulier and Doke had derogated from the protection guaranteed to authors by Directive 2001/29, the scheme introduced for the benefit of the INA in the general interest is intended to reconcile the rights of performers with those of producers as being of equal value within the system of that directive.

In those circumstances, the Cour de cassation (Court of Cassation) decided to stay the proceedings and refer the following question to the Court for a preliminary ruling:

‘Must Article 2(b), Article 3(2)(a) and Article 5 of Directive 2001/29 … be interpreted as not precluding national rules, such as those laid down in Article 49(II) of [the Law on freedom of communication], as amended by Article 44 of Law No 2006-961 of 1 August 2006, from establishing, for the benefit of the [INA], the beneficiary of the exploitation rights of national broadcasting companies in the audiovisual archives, derogating provisions under which the terms on which performers’ works can be exploited and the remuneration for that exploitation are governed by agreements concluded between the performers themselves or the employee organisations representing performers and that institute, which must specify, inter alia, the scale of remuneration and the arrangements for payment of that remuneration?’

The Advocate’s opinion:

Article 2(b), Article 3(2)(a) and Article 5 of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society must be interpreted as precluding a national rule, insofar as it provides for a transfer to the Institut national de l’audiovisuel (French National Audiovisual Institute) of the performers’ rights.