Abstract

With the RAAP ruling in 2020, the Court of Justice of the European Union (CJEU) delivered a judgment with a far-reaching impact, both on the autonomy of Member States within the making of reservations under international treaties, and on revenues for collecting societies and neighbouring rightsholders in the EU. The controversial part of the judgment states that entering reservations on the granting of equitable remuneration for neighbouring rights on the basis of international treaties should only take place at EU level. This effectively leaves no autonomy to Member States within the principle of reciprocity, contrary to former popular belief by many Member States and scholars.

The US has entered reservations with regard to EU countries under Art. 15(3) WIPO Performances and Phonograms Treaty (WPPT), thus no remuneration is disbursed for performances by EU artists in the US. Due to the US repertoire’s large presence in the EU, the latter’s performers will be left with a considerably smaller share of the revenues to be distributed by EU collecting societies.

The European Commission must urgently finish the ongoing research and consultation on RAAP. Right now, too many requests by interest groups remain unanswered. The recommended (and hoped for) route is for the EU to invoke the principle of reciprocity and enter reservations for other WPPT parties that have entered such reservations with regard to EU countries. An extensive arrangement regarding reservations is necessary, also regarding situations where the relationship between fundamental rights and reciprocity provisions is currently unknown.

I. Introduction

Music brings people together. Collective management organisations (CMOs) bring together the rights of artists. CMOs are organisations engaged in managing and exploiting the rights of authors and performers.1 An important part of the practice of these organisations is the protection of works and the collective collection of fees for the use of those works.2 For authors and performers, as well as their producers and publishers, among others, CMOs offer a solution to the time-consuming task of tracing every use of a work and claiming appropriate remuneration for it. Rightholders transfer that task to CMOs in exchange for payment of a fixed tariff.3

With the RAAP ruling in 2020, the Court of Justice of the European Union (CJEU) delivered a judgment with a far-reaching impact, both on the autonomy of Member States within the entering of reservations under international treaties, and on revenues for CMOs and neighbouring rightsholders in the European Union (EU).4 The controversial part of the judgment states that entering reservations on the granting of equitable remuneration for neighbouring rights on the basis of international treaties should only take place at EU level. This effectively leaves no autonomy to Member States within the principle of reciprocity, contrary to the popular belief formerly held by many Member States and scholars.5

The RAAP judgment involves multiple consequences that are unfavourable for CMOs and neighbouring rightsholders in the EU. Perhaps most importantly, due to the large presence in the EU of United States (US) repertoire, EU performers will be left with a smaller share of the revenues to be distributed by CMOs.6 The US itself has entered reservations with regard to EU countries under Art. 15(3) WIPO Performances and Phonograms Treaty (WPPT), resulting in no remuneration being disbursed for performances by EU artists in the US.7

This opinion focuses on neighbouring rights (also ‘copyright-related rights’) and thus performers and phonogram producers. The remuneration right to which performers and producers are entitled has a basis in Art. 8(2) of the 1961 Rome Convention and Art. 15 of the 1996 WPPT. While the WPPT was ratified by all Member States as well as the EU, the older Rome Convention was only acceded to by all the Member States individually. The minimum rights from the Rome Convention were harmonised by the EU legislator in 1992 through Council Directive 92/100/EEC of 19 November 1992 on rental right and lending right and on certain rights related to copyright in the field of intellectual property. Without modifying the regime of the remuneration right (Art. 8(2)), the 1992 Directive was later replaced by Directive 2006/115/EC of the European Parliament and of the Council of 12 December 2006 on rental right and lending right and on certain rights related to copyright in the field of intellectual property (‘Rental and Lending Directive’ or ‘RLD’).8

In 2020, the CJEU gave further interpretation to the provisions of the Rental and Lending Directive, in the aforementioned RAAP case, as well as in the Atresmedia case.9 In Atresmedia, the CJEU ruled that equitable remuneration was not payable for copyright-related rightsholders when an audiovisual recording containing the fixation of an audiovisual work incorporating their phonogram was communicated to the public, because such an audiovisual work (for example: a TV programme with (background) music), did not qualify as a phonogram or a reproduction thereof.10 Further treatment of the Atresmedia case is beyond the scope of this opinion, but it is important to know that two causes of reduced revenues for performers arose in the same year.

In summary, two rulings were handed down in a short period of time that had the effect of reducing the remuneration of creators in the EU for their creative efforts.11 A worrisome development. It has been estimated that due to the consequences of the RAAP case alone, approx. EUR 125 million are paid to third-country rightholders every year that would otherwise go to European performers.12 This decline of income is a direct danger to the livelihood of small to medium-sized European music businesses and their musicians especially, as well as to cultural diversity in the EU in general.13 With the increasing internationalization of the entertainment industry, the question whether creators should be granted fair compensation from other countries is more relevant than ever.14 As many EU countries have a strong focus on the US repertoire compared to their domestic repertoire, the expectation seems justified that the lack of compensation from the US, even though the EU countries have an obligation to grant compensation to US artists, will lead to financial and creative disaster.15 On top of this, performers lose revenue as a result of the loss of the claim to equitable remuneration for the use of their performances in TV programmes, commercials and music videos, among other things.16

The implications of the RAAP ruling for the EU’s copyright-related rights and their practice are the focus of this opinion. First, the relevant parts of the CJEU’s ruling will be discussed and evaluated. Then, an analysis will be given of the consequences of the judgment as compared to the previous situation in 2020, followed by an examination of the (possible) next legal steps, and a conclusion as a final note.

II. The RAAP ruling

On 8 September 2020, the CJEU ruled on a reference for a preliminary ruling under Art. 267 Treaty on the Functioning of the European Union (TFEU).17 The request was made by the High Court, the court of first instance in Ireland. Simply put, the case that gave rise to the preliminary questions was between two CMOs (Recorded Artists Actors Performers Ltd, thus ‘RAAP’, and Phonographic Performance (Ireland) Ltd), who were in disagreement as to whether remuneration had to be paid for broadcast music performed by an artist who is not a national or resident of a European Economic Area (EEA) Member State.

One issue in the RAAP case was the question of the scope of the concept of ‘relevant performers’. Article 8(2) provides that equitable remuneration is only due to ‘relevant performers’. As the CJEU confirmed, this is an autonomous concept of EU law. Member States may therefore not attach any other interpretation or additional requirements to this concept through national law. As regards the use of phonograms, the RLD precludes Member States from excluding the right to equitable remuneration for artists who are nationals of states outside the EEA.18

As Torremans mentions in his contribution about the RAAP case, it is anything but surprising that the CJEU interpreted the concept of ‘relevant performers’ in the present dispute autonomously and uniformly.19 In previous decades, the CJEU had already interpreted the concept of ‘public’ autonomously and uniformly.20 Particularly related to the present judgment, the CJEU also similarly interpreted the concept of ‘equitable remuneration’.21 In short, the interpretation establishing concepts as autonomous and uniform concepts of Union law has often been applied in the context of both copyright and copyright-related rights.22

1. Principle of reciprocity

The CJEU then answered the preliminary question, which concerned the principle of reciprocity, the answer to which has proven to be more eyebrow-raising than the one discussed above. The principle of reciprocity should be understood as follows. A contracting party enters a reservation to a provision in international agreements with other contracting parties. For these other parties, the provision is then modified to the same extent by the reservation made within the relationship with the party that made the reservation. This creates a situation of reciprocity. The CJEU interprets the question asked by the referring court to mean that the Irish High Court wishes to know whether Art. 15(3) WPPT and Art. 8(2) RLD are to be interpreted as meaning that reservations notified by third states under Art. 15(3) WPPT, the effect of which is to restrict the right to a single equitable remuneration laid down in Art. 15(1) WPPT in their territory, have the effect, in the Union, of enabling each Member State to impose restrictions on the right laid down in Art. 8(2) RLD in relation to the nationals of those third states.23

The CJEU reiterated what was set out in the order for reference with regard to the relevance of this question of the referring court for the resolution of the main proceedings. In brief, the issue was that reservations had been notified by certain third states, such as the US, in accordance with Art. 15(3) WPPT, the question being whether EU law permitted the notification of such reservations to allow EU Member States to determine that remuneration for related rights in a phonogram need not be paid to a third-country artist, whereas such remuneration should be paid to a producer who has a related right in the same phonogram. Thus, the Irish CRR Act would have the effect of limiting the copyright-related rights of US artists in Irish territory, according to the CJEU.24

In this regard, the CJEU first recalled that several third states had declared, by means of a reservation under Art. 15(3) WPPT, that they did not consider themselves bound by Art. 15(1) WPPT. Other third states, most notably the US, had notified that they would apply Art. 15(1) WPPT only to a limited extent.25 It followed from Art. 4(2) WPPT that, for the Union and its Member States, all such reservations equally reduced the obligation to pay a single equitable remuneration to the (nationals of the) third state that entered the reservation. The CJEU held that Art. 4(2) WPPT must indeed be interpreted in the light of the relevant rules of international law ‘that are applicable in the relations between the contracting parties’.26 One such rule is the reciprocity principle, contained in Art. 21(1) of the Vienna Convention on the Law of Treaties.27

As a result, the CJEU considered that the Union and its Member States were not bound to grant without restriction the right to a single equitable remuneration set out in Art. 15(1) WPPT to the nationals of a third state which, by notification of a reservation on the grounds of Art. 15(3) WPPT, had excluded or restricted the grant of such a right in its territory.28 The Union and its Member States were also not obliged to grant the right to a single equitable remuneration without limitation to nationals of third countries that were not parties to the WPPT.29

The CJEU continued by characterising the consequences and risks of the foregoing finding. It pointed out that such a refusal by third states to grant the right to a single equitable remuneration for any form or some forms of use of phonograms in their territory was liable to inconvenience nationals of Member States engaged in the often international trade in music recordings. It made it more difficult for them to receive an adequate income and to recoup investments.30 Such a refusal could also affect the possibility for performers and producers of phonograms from Member States of the Union to participate in that trade in musical recordings on an equal footing with performers and producers of phonograms from a third state which had notified a reservation under Art. 15(3) WPPT. This created a situation where the performers and phonogram producers of that third state always received revenue when their recorded music was performed in the Union, while the third state concerned, by notifying that reservation under Art. 15(3) WPPT, waived not only Art. 15(1) WPPT, but also Art. 4(1) WPPT. The latter article contains the obligation of equal treatment with regard to the right to equitable remuneration for the use of phonograms published for commercial purposes.31

a) Fundamental rights protection

Based on the consequences and risks outlined above, the CJEU noted that there was a public interest objective at stake here, namely the need to preserve a level playing field for participation in the trade in recorded music. That objective may justify a restriction of the copyright-related right provided for in Art. 8(2) RLD in relation to the nationals of a third state that did not grant that right or granted it only in part, according to the CJEU.32 Nonetheless, the CJEU noted that the right to a single equitable remuneration within the Union was a copyright-related right (as also reflected in para. 57 of the present judgment). Since that right was therefore an integral part of the right to the protection of intellectual property (IP) enshrined by Art. 17(2) of the Charter of Fundamental Rights of the European Union (Charter), any limitation on the exercise of that related right must be laid down by law,33 this being on the basis of Art. 52(1) Charter. This implied that the legal basis allowing interference with that right must itself clearly and precisely determine the extent to which the exercise of that right was restricted.34

The European Copyright Society (ECS) has made a number of criticisms of the above. Obviously, the ECS agrees with the CJEU that a balancing exercise should take place between fundamental rights. However, the CJEU applies an abstract test in assessing whether a claim for fair compensation should lead to the application of Art. 17(2) Charter, while a concrete test for IP rights would be more appropriate, according to the ECS. Where the CJEU considers that application of Art. 17(2) should result in Member States having to guarantee to every (legal) person – irrespective of origin – a fundamental right protected by law such as the copyright-related right unless the EU provides otherwise by law, concrete application would result in a situation where third-country nationals, under rules of international IP law, would not be entitled to protection, and thus they could not invoke the protection of the Charter.35 Van Eechoud rightly objects that a concrete application in the case at hand would not have made any difference. Since the Irish exclusion from protection of third-country performers was categorical in nature, it was in violation of both Ireland’s obligations under the WPPT and of EU law.36 Another (more effective) criticism voiced by the ECS is that the CJEU seems to wrongfully ignore the distinction between restrictions on the existence of IP rights and restrictions on their exercise. In doing so, it apparently broadens the scope of such rights.37

The above considerations of the CJEU show, as Torremans argues, that when a right is a fundamental right based on the Charter, such as the copyright-related right, this does not mean that this right is also an absolute right. First of all, there are other fundamental rights to which the same legal status has been granted. These rights may be unreasonably restricted by an unrestricted exercise of the aforementioned IP right. An example relevant to this dispute is the right to freedom of enterprise.38 Although the CJEU did not elaborate on this, it did point out that refusal by third states to give all performers the right to equitable remuneration may hinder the ability of certain performers to be active in the music sector.39 The freedom of entrepreneurship is thus obviously compromised. Of course, a similar measure by the European Union or a Member State would bring about the same result for third state-related rightsholders.40

b) Reservations in international treaties

The CJEU held in para. 87 that the mere existence of a reservation validly notified pursuant to Art. 15(3) WPPT does not satisfy the requirement that the legal basis clearly and precisely determines the extent to which the exercise of that right is restricted. This is because on the basis of such a reservation, the nationals of the third state in question cannot know exactly how their right to a single equitable remuneration is thereby restricted in the Union. The CJEU held that this required a clear rule of Union law itself.41 In so doing, the CJEU mentioned that Art. 8(2) RLD was a harmonised rule. As a result, it was for the Union legislature alone, and not the national legislatures, to determine whether the grant of that copyright-related right must be restricted in the Union in relation to nationals of non-Member States and, in the event that it must be restricted, also to record that restriction in a clear and precise manner. The CJEU echoed what the Commission emphasised in its observations, namely that such a limitation was lacking in Art. 8(2) RLD as well as in any other provision of Union law as it stood.42

Moreover, the CJEU added, the Union has exclusive external competence under Art. 3(2) TFEU ‘for the purpose of negotiating with third States new reciprocal commitments, within the framework of the WPPT or outside it, relating to the right to a single equitable remuneration for producers of phonograms published for commercial purposes and performers contributing to those phonograms.’43 After all, any agreement in this regard could modify the obligations of Art. 8(2) RLD, which is a common Union rule. The subject matter of such a targeted agreement and the identical subject matter of Art. 8(2) of this Directive would coincide completely, according to the CJEU. The Union has an external competence here, while Member States have no competence in this.44 With this, the CJEU confirmed the tendency expressed in its prior judicial practice of limiting the shared competences of Member States in the application of international agreements entered into jointly by the Union and the Member States, also referred to as ‘mixed agreements‘. Nevertheless, this was the first time that the CJEU had also applied the limitation to agreements signed by Member States independently when they concerned matters similar or analogous to matters contained in mixed agreements.45

Thus, the CJEU answered the third question in such a way that, in the current state of Union law, Art. 15(3) WPPT and Art. 8(2) RLD must be interpreted as meaning that reservations notified by third states under Art. 15(3) WPPT, the effect of which was to restrict in their territories the right to a single equitable remuneration laid down in Art. 15(1) WPPT, did not have the effect, in the Union, of restricting the right laid down in Art. 8(2) RLD in respect of nationals of those third states. The CJEU added that such restrictions may be introduced by the Union legislature if they met the requirements of Art. 52(1) Charter. In short, according to the CJEU, Art. 8(2) RLD precluded a Member State from limiting the right to a single equitable remuneration in respect of performers and producers of phonograms who were nationals of those third states.46

III. Implications of the RAAP ruling

The RAAP case is unanimously seen as a major ruling for copyright-related rights.47 The consequences are described as far-reaching.48 The remainder of this opinion will discuss what exactly these consequences will be for EU copyright-related rights and its practice. One consequence that stands out is that the judgment makes it clear that performers from outside the EU or EEA are entitled to equitable remuneration under EU law, even when their home countries pay little or nothing to performers from the EU or EEA.49 This consequence will be discussed more broadly below, after which other implications for equitable remuneration in EU copyright-related rights practice will also be explored. Moreover, the wider implications for the relationship between international provisions and EU provisions will be addressed.

1. Equitable remuneration

Following the RAAP judgment, the Dutch legislator was the first in the EU to alter its national copyright-related rights law (‘Wnr’) accordingly.50 Previously, when related rightsholders could derive rights from the WPPT, they could also invoke the corresponding rights under the Wnr. However, the interpretation of the WPPT adopted in the Netherlands – before the CJEU’s ruling – was that, in view of Art. 4(2) WPPT, no remuneration was due to performers from non-EEA countries for uses for which those countries did not recognise remuneration rights. This interpretation has thus been overtaken. The legislative amendment made it clear that Dutch national law does not impose such a reciprocity requirement. The only requirement that now applies is that performers and phonogram producers from outside the EEA should be eligible for protection based on the conditions set by the WPPT. A possible reciprocity requirement should result from EU legislation in the future.51

Both Van Eechoud in her note and the ECS in its critical response to the judgment emphasise that it is reasonable to assume that henceforth, for example, US performers will be included in the distribution of funds. Due to the predominance of US-derived repertoire in the EU, a smaller slice of the pie will remain for EU performers.52 Conversely, the US did make the necessary reservations under Art. 15(3) WPPT that result in no remuneration being due for performances by EU performers in the US.53

As we now know, the Dutch CMO Sena was forced to raise its tariffs substantially as a result of these developments.54 As the European Commission has still not shared its stance, Sena was forced to extend the increase for the year 2024 as well.55 Thus, Dutch performers will continue to pay more yet receive – in most cases – lower remuneration. In France, similarly, collected revenue amounts that before were not be distributed to third state rightholders in application of the international conventions but instead were allocated to benefit France’s cultural and artistic well-being, are now being retained in anticipation of a final decision at EU level on the matter.56

As mentioned, national measures based on the principle of reciprocity no longer have any influence within copyright-related rights in Europe. This considerably weakens the position of governments and CMOs from Member States in negotiations with third countries to enforce better equitable remuneration claims for performers from their own countries. This situation is highly undesirable. First, of course, for the income of performers in the Union, but it also affects the economic and cultural progress of the European Union more broadly. As stated in recital 3 of the Rental and Lending Directive, ‘adequate protection of […] subject matter of related rights protection can accordingly be considered as being of fundamental importance for the economic and cultural development of the Community’. The situation created by the CJEU actually thwarts the economic and cultural development of the European Union. Economically, this is more directly appreciable, partly because of the statements by the US rights organisation SoundExchange. This organisation claimed, when praising the RAAP ruling in 2020, that Americans miss out on up to USD 330 million a year in fees due to global ‘unequal treatment’.57 Of course, this amount does not only constitute money (previously) withheld by the Union. Given the large market for US music in the Union, it will just as certainly amount to at least tens of millions of euros a year lost to the European economy.58 Impala IMCA, a European musicians’ advocacy organisation, values the annual loss at EUR 125 million.59 The European Commission calculates a loss of EUR 35.2 to EUR 66.3 million a year for eight Member States surveyed.60

Another finding from a study by the Commission, on which more under ‘IV. Next Steps’, is that among rightholders, performers are hit harder than phonogram producers. Indeed, for performers, the single equitable remuneration constitutes a larger portion of their entire revenue portfolio. In addition, the Commission rightly finds that among producers, the independent and smaller producers are hit harder than the major labels. After all, the latter have (more of) an internationally diversified music repertoire.61

Interestingly, on 15 January 2024, the UK Government commenced an open consultation, as the UK intends to change how certain copyright and related rights are extended to foreign nationals.62 Uncoincidentally, the US is identified as the prime example of a country which does not grant rights to UK performers equal to US performers. An argument that is brought up in the accompanying text is that, as a consequence of applying reciprocity, a situation could occur where UK broadcasters and those that play music in public are inclined to favour US music as this would save them the costs of remuneration. This could equally apply in EU Member States, with greater savings for EU users, but at the expense of EU producers and performers, as their music will be played less. Of course, this completely depends on whether entering the reservations vis-à-vis US performers actually influences what music is played by EU users, which seems very difficult to predict.

a) Interplay of international and EU provisions

More broadly, the judgment is of significance for international law and the interplay between international and EU provisions.63 The ECS rightly raises the question of when it was determined that Member States no longer had any influence and could not invoke the relevant international treaties. As the ECS notes, the European Commission and Member States together signed the WPPT as a mixed agreement. Several Member States entered reservations at the time and subsequently. The European Commission never objected to these until the RAAP case. It can be deduced from this that the European Commission believed that Member States had the power to enter and invoke such reservations to international treaties and the principle of reciprocity. Upon ratification and accession by Member States to the WPPT, the Council Legal Service advised Member States on the application of the WPPT. At the time, the Legal Service in fact took the view that the power to invoke reciprocity belonged to the Member States. Moreover, it was subsequently agreed in the Council that Member States would also use that power. No unilateral benefits would be conferred on other contracting parties.64 The question is then very much of at what point Member States ceased to have this power.65

It remains unclear whether this exclusive external competence of the EU in this area actually applied since the exercise of internal competence in 1992, or whether it only came into force later, for example with the entry into force of the Lisbon Treaty on 1 December 2009, which led to the granting of binding force to the EU Charter.66 The Charter is, after all, given a role in the mix by the CJEU, through the ruling that restrictions on IP rights through their inclusion as a fundamental right in the Charter must be made possible by EU law.67 In short, which of these sources of law is decisive as to when Member States were not allowed to enter the reservations is unknown. Consequently, the moment of validity of the legal rule is also unclear. It is important to note, as the ECS also does, that no such questions of transitional law were raised by the referring court, which prevented the CJEU from shedding light on them in the present judgment. This results in legal uncertainty for both Member States and the European legislature. The above is also important because retroactive effect in respect of the res judicata cannot be ruled out.68 Many performers might then still be able to claim equitable remuneration to which they were entitled but which they did not receive.69 Back in 2021, the German Association for the Protection of Industrial Property and Copyright wrote an open letter to the German ministry addressing the risk of such claims.70

Seen this way, the RAAP judgment offers new insights, but perhaps leaves even more ambiguities regarding the operation of special reciprocity provisions in international treaties.71 That European fundamental rights have an impact on copyright-related rights is clear, but it remains to be seen to what extent and how exactly this works out – even more so in other situations where fundamental rights and reciprocity provisions come into play. A good example can be found in the protection of the rights to works of applied art.72 Regarding those rights, the Dutch Supreme Court has referred preliminary questions to the CJEU because, among other things, it is unclear on the basis of RAAP whether the Netherlands may apply the Berne Convention’s ‘reciprocity test’ without an EU regulation to that effect.73

Another reason to assume that the RAAP judgment will broaden the scope of fundamental IP rights is the new element that the CJEU adds to the definition of those rights protected by the EU Charter. The CJEU ruled that the concept of intellectual property was not only limited to rights of a strictly proprietary kind – exclusive rights, that is – but also extended to mere remuneration rights. In that way, with an analogous interpretation, other remuneration rights can also be deemed fundamental rights, like the equitable remuneration right for rental of phonograms and films in Art. 5 RLD as well as the fair compensation right for private copying and photocopying in Art. 5(2) Directive 2001/29/EC.74

IV. Next steps

In July 2021, the European Commission announced the launch of an investigation into the consequences of the RAAP case. Questions from alarmed Members of the European Parliament were the immediate cause for the Commission to act.75 Since the opening of the investigation, Members of the European Parliament, CMOs and other advocacy groups have criticized the tardiness of the investigation process and, more importantly, the European Commission for not proceeding with legal action.76

Between July and September 2022, the European Commission opened a ‘Call for Evidence’ as part of the study. Such a public consultation is a tool for the European Commission to obtain information from stakeholders on a particular issue which is being treated by the Commission. With the Call for Evidence for the RAAP case, the European Commission sought to gather all possible reactions from stakeholders regarding the application of Art. 8(2) RLD and the impact of the case.77 Quite unexpectedly, the European CMOs pleaded en masse and unequivocally for EU law to be adapted in such a way that the principle of reciprocity could (again) be applied to third countries, and for the EU to act promptly.78 Then, a year later, between September and November 2023, the Commission opened a targeted consultation aimed at music industry stakeholders on the same matter. The results have not yet been published, but can be easily guessed.79

Based on the feedback and strong desire from stakeholders and advocates as well as the call from EU and national parliamentarians, the European Commission should be expected to want to introduce an explicit reciprocity provision.80 Moreover, it is to be expected that this provision would then be introduced not only vis-à-vis the US, but also relative to other third countries that do not fully protect rights under the WPPT. These include countries such as Australia, Canada, Chile and Russia.81 Such reservations, or merely the prospect of them, could perhaps prompt those countries to reconsider their provisions, leading to a situation where it is attractive for all countries to revoke their reservations. Equitable remuneration for all performers and producers, irrespective of nationality, would follow.

Furthermore, it is not sufficient for the reservation that the EU only invokes reciprocity when other WPPT parties enter a reservation that results in less protection. While the foregoing is permissible under international law, more detailed legislation would be needed for it to be sufficiently effective in the European legal order.82 In paras. 82 to 84, the CJEU actually already recognised that the guarantee of an (international) level playing field is a sufficient justification for the EU to impose a restriction on the remuneration right of Art. 8(2) RLD for third-country rightholders.83 In short, there are sufficient starting points for the EU legislator to act on and introduce the reciprocity rule at EU level. The pressing question is why it is taking so long to do so.

V. Conclusion

The CJEU’s RAAP case from 2020 raises a wide array of questions. Many of these questions are aptly put forward and framed in the relevant literature. They have not been answered as yet, however. Additional EU legislation as well as possibly new decisions by the CJEU should give clarification – on the copyright-related rights (or ‘neighbouring rights’) and their practice, on the principle of reciprocity for EU Member States in the international context, and on the relationship between fundamental rights and (other) intellectual property rights. In 2023, the highest judge in the Netherlands already asked preliminary questions in the consideration of the case of Kwantum v Vitra Collections about the exact meaning of the judgment of the RAAP case.84 In my opinion, the European Commission must urgently finish the ongoing research and consultation on RAAP and apply the solutions that arise from it. Right now, too many pleas by interest groups remain unanswered.

The recommended (and hoped-for) route is for the EU to invoke the principle of reciprocity and enter reservations for other WPPT parties that have made such reservations with regard to EU countries. An extensive arrangement regarding reservations is also necessary, so that it becomes clear what the precise relationship is between international provisions and EU provisions when entering reservations, including in other situations where the relationship between fundamental rights and reciprocity provisions is currently unknown.85

The judgment involves multiple consequences that are undesirable for EU CMOs, producers and performers. Due to the large presence in the EU of US repertoire, EU neighbouring rightsholders will be left with a smaller share of the single equitable fees to be distributed by CMOs.86 This is the consequence of the reservations the US entered with regard to EU countries under Art. 15(3) WPPT.87 These result in performances by EU performers in the US not being subject to a fee. CMOs will have to continue to collect for the many US phonograms used in the EU. The CMOs that administer neighbouring rights either have already been forced to raise their tariffs substantially in response to these developments or will have to in the near future. Rightholders will thus pay more for – in most cases – lower fees. Among EU neighbouring rightsholders, performers are hit hardest, as the single equitable remuneration constitutes a larger portion of their entire revenue portfolio.88

National measures based on the principle of reciprocity no longer have any influence within neighbouring rights within the EU. The position of Member State governments and CMOs is thus considerably weakened in negotiations with third countries to enforce better fair remuneration claims for performers from their own countries.89 Member States thus lose control over their own economic choices and CMOs and performers lose a more influential party that can negotiate directly with third countries. This situation is highly undesirable, at least as long as the EU does not assist Member States by proceeding with its own reservations.

Member States and CMOs are left with numerous questions. Among other things, it is unclear how transitional law applies and thus whether there is any retroactivity and if so, to what point in time.90 There is also the question of how the ruling applies to the autonomy of Member States within the principle of reciprocity in other situations involving fundamental rights and reciprocity provisions under international law.91

It is, to say the least, extremely unfortunate that RAAP coincided with CJEU’s Atresmedia ruling in the same year, which meant that two causes of reduced revenues for performers arose simultaneously, while performers also suffered financial hardship in that year and in subsequent years as a result of the corona pandemic. A RAAP fix is in the works but should be completed sooner rather than later.92 Ideally, perhaps, entering reservations for the US and other countries that entered reservations under the WPPT, would stir them to withdraw theirs and start paying all performers and producers their well-earned remuneration. Then, finally, neighbouring rights would be equitably in tune with music, bringing together countries, and their people.

Footnotes

1

Christian Handke and Ruth Towse, ‘Economics of Copyright Collecting Societies’ (2007) 38 International Review of Intellectual Property and Competition Law 937-57; Gerben Kor and Wouter Koster, Media- en entertainmentrecht (2nd edn, Wolters Kluwer 2017) para 4.2.3.

2

Daniel J Gervais (ed), Collective Management of Copyright and Related Rights (3rd edn, Kluwer Law International 2016); Kor and Koster (n 1) para 4.2.3.

3

Jacob Hendrik Spoor, DWF Verkade and DJG Visser, Auteursrecht: Auteursrecht, Portretrecht, Naburige Rechten En Databankenrecht (4th rev edn, Wolters Kluwer 2019) para 10.1; Kor and Koster (n 1) para 1.4.

4

Case C‑265/19 RAAP ECLI:EU:C:2020:677; Valérie-Laure Benabou, ‘L’arrêt RAAP Ou Quand Compétence Externe de l’Union et Fondamentalisation Des Droits de Propriété Intellectuelle Provoquent Un Tsunami’ [2021] Dalloz IP/IT: droit de la propriété intellectuelle et du numérique 30; Jørgen Blomqvist and Morten Rosenmeier, ‘International Protection of Performers in the EU – Points of Attachment and National Treatment vs. Material Reciprocity after the RAAP Decision by the CJEU/Protection Internationale Des Artistes et Union Européenne – Points de Rattachement et Traitement National vs Réciprocité Matérielle Après La Décision RAAP de La CJUE’ (2021) 269 RIDA – Revue internationale du droit d´auteur 33-71; European Copyright Society, ‘Comment of the European Copyright Society on the impact and consequences of the CJEU decision in C-265/19 (RAAP)’ (2022) <https://www.ivir.nl/publicaties/download/ECS_RAAP.pdf> accessed 10 December 2023; Mireille van Eechoud, ‘Annotatie Bij Hof van Justitie EU 8 September 2020, ECLI:EU:C:2020:677’ [2021] Auteursrecht 77-79; Ole-Andreas Rognstad, ‘Performing Artists’ Right to Remuneration – on the Junction of External Treaty Competence, National Treatment, Material Reciprocity and Fundamental Rights: RAAP’ (2021) 58 Common Market Law Review 1523.

5

Paul LC Torremans, ‘Het Hof van Justitie Richt Het Vizier Weer Op de Collectieve Beheerorganisaties: Zijn Billijke Vergoedingen Voor Iedereen de Nieuwe Norm?’ [2021] IER 31; Bernt Hugenholtz, ‘Annotatie Bij Hof van Justitie EU 8 September 2020, ECLI:EU:C:2020:677 (Recorded Artists Actors Performers)’ (2022) 126 NJ 2373.

6

European Copyright Society (n 4); van Eechoud, ‘Annotatie Bij Hof van Justitie EU 8 September 2020, ECLI:EU:C:2020:677’ (n 4).

7

RAAP (n 4) para 77.

8

Hugenholtz (n 5).

9

RAAP (n 4); Case C‑147/19 Atresmedia/AGEDI ECLI:EU:C:2020:935.

10

Atresmedia/AGEDI (n 9).

11

Torremans (n 5).

12

‘Time to wake up – the EU sleepwalking into a financial and cultural disaster for Europe’s music sector’ (Impala Music IMCA, 15 March 2023) <https://www.impalamusic.org/timetowakeup/> accessed 10 December 2023.

13

ibid.

14

Charlotte O’Mara, ‘Hero or hindrance for the music industry from a legal perspective’ in Ann Harrison, The Present and Future of Music Law (Bloomsbury Academic 2021) 209-28; Patrik Wikström, The Music Industry: Music in the Cloud (Polity 2009).

15

European Copyright Society (n 4); van Eechoud, ‘Annotatie Bij Hof van Justitie EU 8 September 2020, ECLI:EU:C:2020:677’ (n 4).

16

Atresmedia/AGEDI (n 9); Rob Van Dongen, ‘Nr. 1 Atresmedia/AGEDI En AIE’ [2021] Auteursrecht; ABE Dos Santos Gil, ‘Reproduceren Zonder Reproductie. Een Commentaar Bij de Atresmedia-Uitspraak’ (2021) 20079 IEF; Eleonora Rosati, ‘Round-up of CJEU Copyright Decisions in 2020’ (2021) 16 JIPLP 527; Syb Terpstra, ‘Annotatie Bij HvJ EU 18-11-2020, ECLI:EU:C:2020:935 (Atresmedia Corporación de Medios de Comunicación)’ [2021] IER; Antonio Muñoz Vico, ‘Atresmedia versus AGEDI-AIE: Are artists and their labels entitled to equitable remuneration for the use of their music on television?’ (Garrigues Intellectual Property Blog, 1 December 2020) <https://blogip.garrigues.com/en/intellectual-property/atresmedia-versus-agedi-aie-are-artists-and-their-labels-entitled-to-equitable-remuneration-for-the-use-of-their-music-on-television> accessed 17 February 2024; ‘Update: Atresmedia-arrest’ (Sena, May 2021) <https://sena.nl/nl/event/update-atresmedia> accessed 10 December 2023.

17

RAAP (n 4) para 1.

18

Erik Thijssen, ‘RAAP/PPI en ATRESMEDIA, twee arresten en hun gevolgen’ (Performers Magazine 1-2021); Torremans (n 5).

19

Torremans (n 5).

20

Stavroula Karapapa, ‘The Requirement for A “New Public” in EU Copyright Law’ [2017] European Law Review 63-81.

21

Case C-245/00 SENA ECLI:EU:C:2003:68, para 24; Case C-306/05 SGAE ECLI:EU:C:2006:764, para 31; Case C-271/10 VEWA ECLI:EU:C:2011:442, paras 25 and 26.

22

Maurizio Borghi, ‘The Universal Nature of Performers’ Rights under EU Law (a Note on Case C-265/19, Recorded Artists Actors Performers v Phonographic Performance Ireland)’ (2021) CIPPM / Jean Monnet Working Papers No 01-2021; Torremans (n 5).

23

RAAP (n 4) para 76.

24

ibid para 77.

25

RAAP (n 4) para 78.

26

Case C‑386/08 Brita ECLI:EU:C:2010:91, para 43; Case C‑266/16 Western Sahara Campaign ECLI:EU:C:2018:118, para 58.

27

RAAP (n 4) para 79.

28

ibid para 80.

29

ibid para 81.

30

ibid para 82.

31

ibid para 83.

32

ibid para 84.

33

ibid paras 85-86.

34

ibid para 86.

35

European Copyright Society (n 4); Mireille van Eechoud, ‘Niet Bern Maar Brussel: Assimilatie En Reciprociteit Tussen RAAP En VITRA’ [2023] Auteursrecht 67-76.

36

van Eechoud, ‘Niet Bern Maar Brussel: Assimilatie En Reciprociteit Tussen RAAP En VITRA’ (n 35).

37

European Copyright Society (n 4).

38

art 16 Charter.

39

RAAP (n 4) paras 82-83.

40

Torremans (n 5).

41

RAAP (n 4) para 87.

42

ibid para 88.

43

ibid para 89.

44

ibid para 90.

45

Borghi (n 22).

46

RAAP (n 4) para 91.

47

Benabou (n 4); van Eechoud, ‘Annotatie Bij Hof van Justitie EU 8 September 2020, ECLI:EU:C:2020:677’ (n 4); Blomqvist and Rosenmeier (n 4); Mihály J Ficsor, ‘RAAP: the obvious, the missing, the regrettable and the desirable’ (Self-published on the author’s website 2021) <http://www.copyrightseesaw.net/en/papers>; Cyril van der Net, ‘Recht Voor Zijn Raap! Naar Regulering Op Unieniveau van de Toepassingscriteria, Nationale Behandeling En Reciprociteit Op Het Gebied van de Naburige Rechten’ [2021] Auteursrecht 45; Rognstad, ‘Performing Artists’ Right to Remuneration – on the Junction of External Treaty Competence, National Treatment, Material Reciprocity and Fundamental Rights: RAAP’ (n 4); Torremans (n 5); Hugenholtz (n 5).

48

Benabou (n 4); Blomqvist and Rosenmeier (n 4); van Eechoud, ‘Annotatie Bij Hof van Justitie EU 8 September 2020, ECLI:EU:C:2020:677’ (n 4); Rognstad, ‘Performing Artists’ Right to Remuneration – on the Junction of External Treaty Competence, National Treatment, Material Reciprocity and Fundamental Rights: RAAP’ (n 4); ‘European Commission to investigate court ruling’s impact on public performance income’, Impala IMCA (20 July 2021) <https://www.impalamusic.org/european-performance-income-us-repertoire/> accessed 10 December 2023.

49

Rosati (n 16).

50

Wijziging van de Wet toezicht en geschillenbeslechting collectieve beheersorganisaties auteurs- en naburige rechten, 2020/21, 35317 nr. 8.

51

European Copyright Society (n 4).

52

European Copright Society (n 4); van Eechoud, ‘Annotatie Bij Hof van Justitie EU 8 September 2020, ECLI:EU:C:2020:677’ (n 4).

53

RAAP (n 4) para 77.

54

Hugenholtz (n 5); ‘Update: Wetswijziging n.a.v. RAAP-PPI arrest aanleiding voor aanpassing tarieven ingaande 1 januari 2021’ (Sena, 11 March 2021) <https://sena.nl/nl/event/update-wetswijziging-n-a-v-raap-ppi-arrest-aanleiding-voor-aanpassing-tarieven-ingaande-1-januari-2021> accessed 10 December 2023; NTT DATA & ICF, ‘Study on the international dimension of the single equitable remuneration right for phonogram performers and producers and its effect on the European Creative Sector’ (European Commission 2023).

55

‘Update stand van zaken RAAP arrest’ (Sena, 2 November 2023) <https://sena.nl/nl/event/update-stand-van-zaken-raap-arrest> accessed 10 December 2023.

56

European Commission 2023 (n 54).

57

‘SoundExchange Praises European Union Court Decision On Equal Treatment for Creators’ (SoundExchange, 8 September 2020) <https://www.soundexchange.com/news/soundexchange-praises-european-union-court-decision-on-equal-treatment-for-creators/> accessed 10 December 2023; van Eechoud, ‘Annotatie Bij Hof van Justitie EU 8 September 2020, ECLI:EU:C:2020:677’ (n 4).

58

van Eechoud, ‘Annotatie Bij Hof van Justitie EU 8 September 2020, ECLI:EU:C:2020:677’ (n 4).

59

‘Time to wake up – the EU sleepwalking into a financial and cultural disaster for Europe’s music sector’ (n 12).

60

European Commission 2023 (n 54).

61

ibid.

63

Rosati (n 16).

64

van der Net (n 47); Decision of the European Council of 12 July 2007, No 11517/07 PI 34 CULT 37.

65

European Copyright Society (n 4).

66

Borghi (n 22).

67

European Copyright Society (n 4).

68

Ficsor (n 47); Ole-Andreas Rognstad, ‘Repercussions of the RAAP Judgment -- Some Introductory Remarks’ [2022] Nordiskt immateriellt rättsskydd 515-26.

69

European Copyright Society (n 4); Rognstad, ‘Repercussions of the RAAP Judgment -- Some Introductory Remarks’ (n 68).

70

Vereinigung für gewerblichen Rechtsschutz und Urheberrecht 2021.

71

van Eechoud, ‘Niet Bern Maar Brussel: Assimilatie En Reciprociteit Tussen RAAP En VITRA’ (n 35); van der Net (n 47); Rognstad, ‘Performing Artists’ Right to Remuneration – on the Junction of External Treaty Competence, National Treatment, Material Reciprocity and Fundamental Rights: RAAP’ (n 4).

72

Blomqvist and Rosenmeier (n 4).

73

Dutch Supreme Court, 31 March 2023, ECLI:NL:HR:2023:508 – Kwantum/Vitra Collections; van Eechoud, ‘Niet Bern Maar Brussel: Assimilatie En Reciprociteit Tussen RAAP En VITRA’ (n 35).

74

Borghi (n 22).

75

Andre Paine, ‘European Commission to investigate court ruling’s impact on public performance income’ (Music Week, 20 July 2021) <https://www.musicweek.com/labels/read/european-commission-to-investigate-court-ruling-s-impact-on-public-performance-income/083739> accessed 10 December 2023.

76

Chris Cooke, ‘European Parliament’s culture committee demands action from European Commission on “reciprocity” approach to international royalties’ (Complete Music Update, 2 November 2021) <https://archive.completemusicupdate.com/article/approved-georgia-gets-by/> accessed 10 December 2023; Paine (n 75); Andre Paine, ‘‘Financial and cultural disaster’: IMPALA urges EU to act over legal anomaly for performer income’ (Music Week, 15 March 2023) <https://www.musicweek.com/labels/read/financial-and-cultural-disaster-impala-urges-eu-to-act-over-legal-anomaly-for-performer-income/087580> accessed 10 December 2023; Impala IMCA (n 48).

77

Ted Shapiro, ‘European Commission opens Call for Evidence on conditions for the remuneration of third country recorded music played in the EU’ (Wiggin, 8 August 2022) <https://wiggin.co.uk/insight/european-commission-opens-call-for-evidence-on-conditions-for-the-remuneration-of-third-country-recorded-music-played-in-the-eu/> accessed 10 December 2023.

78

European Commission, ‘Remuneration of music performers and record producers from third (non-EU) countries for recorded music played in the EU’ (28 July 2022) <https://ec.europa.eu/info/law/better-regulation/have-your-say/initiatives/13530-Remuneration-of-music-performers-and-record-producers-from-third-non-EU-countries-for-recorded-music-played-in-the-EU_en>, accessed 10 December 2023.

79

European Commission, ‘Targeted consultation on the conditions for the remuneration of music performers and record producers from third (non-EU) countries for recorded music played in the EU’ (11 September 2023) <https://digital-strategy.ec.europa.eu/en/consultations/targeted-consultation-conditions-remuneration-music-performers-and-record-producers-third-non-eu> accessed 10 December 2023.

80

van der Net (n 47); ‘Time to wake up – the EU sleepwalking into a financial and cultural disaster for Europe’s music sector’ (n 12).

81

van Eechoud, ‘Annotatie Bij Hof van Justitie EU 8 September 2020, ECLI:EU:C:2020:677’ (n 4).

82

Ficsor (n 47); Rognstad, ‘Performing Artists’ Right to Remuneration – on the Junction of External Treaty Competence, National Treatment, Material Reciprocity and Fundamental Rights: RAAP’ (n 4).

83

van Eechoud, ‘Annotatie Bij Hof van Justitie EU 8 September 2020, ECLI:EU:C:2020:677’ (n 4).

84

Dutch Supreme Court 31 March 2023, ECLI:NL:HR:2023:508 – Kwantum/Vitra Collections; van Eechoud, ‘Niet Bern Maar Brussel: Assimilatie En Reciprociteit Tussen RAAP En VITRA’ (n 35).

85

Blomqvist and Rosenmeier (n 4); van Eechoud, ‘Annotatie Bij Hof van Justitie EU 8 September 2020, ECLI:EU:C:2020:677’ (n 4); Ficsor (n 47); Rognstad, ‘Performing Artists’ Right to Remuneration – on the Junction of External Treaty Competence, National Treatment, Material Reciprocity and Fundamental Rights: RAAP’ (n 4); Rognstad, ‘Repercussions of the RAAP Judgment -- Some Introductory Remarks’ (n 68).

86

European Copyright Society (n 4); van Eechoud, ‘Annotatie Bij Hof van Justitie EU 8 September 2020, ECLI:EU:C:2020:677’ (n 4).

87

RAAP (n 4) para 77.

88

European Commission 2023 (n 55).

89

Torremans (n 5).

90

European Copyright Society (n 4); Ficsor (n 47); Rognstad, ‘Repercussions of the RAAP Judgment -- Some Introductory Remarks’ (n 68).

91

Blomqvist and Rosenmeier (n 4); van Eechoud, ‘Niet Bern Maar Brussel: Assimilatie En Reciprociteit Tussen RAAP En VITRA’ (n 35).

92

‘Time to wake up – the EU sleepwalking into a financial and cultural disaster for Europe’s music sector’ (n 12); Naji Tilley, ‘European Commission Consults on Payments for Recorded Music Played in the EU’ <https://mediawrites.law/european-commission-consults-on-payments-for-recorded-music-played-in-the-eu/> accessed 17 February 2024.

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