Musicians group get court declarations over pay for broadcasting and performance

A musicians’ group has obtained important High Court declarations in its long running dispute with a record companies organisation over sums payable to performers from licence fees collected for the public broadcast and performance of their work.

The declarations include that a 2006 EC Directive concerning rental and lending rights, and certain intellectual property copyright rights, requires that the right to remuneration accorded to owners of sound recordings publicly broadcast in Ireland must be “equally accorded” to all performers whose performances are included on the recordings.

Recordings

Mr Justice Garrett Simons also declared the Copyright and Related Rights Act 2000 does not properly transpose the 2006 Directive into Irish law because it does not accord to all performers on publicly broadcast sound recordings a right to remuneration for their work.

The Recorded Artists Actors Performers Limited (RAAP) is expected to rely on the declarations, granted in a preliminary hearing, when its full action against Phonographic Performance (Ireland) Ltd (PPI) and the State is ultimately heard in the Commercial Court on a date yet to be fixed.

Mr Justice Simons made the declarations in a judgment this week following on from a judgment of the Court of Justice of the EU on preliminary legal issues in the case which were referred to it.

The contract between RAAP and the PPI defined certain terms by reference to the 2000 Act and the trial of preliminary issues concerned the correct interpretation of the Directive and whether the 2000 Act is consistent with it.

In the CJEU’s September 2020 decision, the interpretation which RAAP had advocated for prevailed, Mr Justice Simons said.

The CJEU held the Directive must be interpreted, as far as possible, in a manner consistent with the WIPO Performance and Phonographs Treaty 1996. That meant the right to equitable remuneration under the Directive must be granted both to performers and phonograph producers who are nationals of member states of the EU and to nationals of other contracting parties to the WPPT.

By contrast, under the 2000 Act, a performer is not entitled to share in the equitable remuneration unless they are an Irish citizen domiciled or resident here or in an EEA country, the judge noted. To this extent, the Irish State had failed to properly transpose the Directive.

Decision

Despite the “unequivocal” CJEU decision, the PPI maintained, irrespective of the correct interpretation of the Directive, RAAP could not rely on the failure to transpose that to win in a dispute involving two private law entities, the judge said.

The PPI always regarded the correct interpretation of the Directive as a relevant issue in the proceedings and could not adopt another position now, he said.

He ruled RAAP was entitled to a declaration against PPI and, insofar as it was necessary, against the Minister for Jobs, Enterprise and Innovation; Ireland and the Attorney General, that the 2006 Directive requires the right to remuneration accorded to owners of sound recordings publicly broadcast here to be “equally accorded” to all performers whose performances are included on the recordings.

He granted a second declaration against the State parties to the effect the 2000 Act does not properly transpose the 2006 Directive into Irish law because it does not accord to all performers on publicly broadcast sound recordings a right to remuneration for their work

RAAP is entitled to its costs against the PPI and the State parties concerning the trial of the preliminary issues, the reference to the CJEU and the consequent hearings before him, the judge added.