Heard melodies are sweet, but those ephemeral are sweeter

An IP enthusiast fully dressed-up
to celebrate World IP Day

There are many ways to celebrate World IP Day on 26 April every year, ranging from the traditional to a proper IP extravaganza. 

For this year's celebrations WIPO decided to remember all those 'visionary innovators' who contributed to the progress of humanity, and also contributed to the creation of valuable IP-protected materials.

The Court of Justice managed to celebrate World IP Day in more style than WIPO by publishing another of its many recent copyright judgments (just to have an idea of the numbers, see the data provided by Head of Unit - Copyright, DG Internal Market & Services Maria Martin-Prat here).

Case C-510/10 DR and TV2 Danmark A/S v NCB - Nordisk Copyright Bureau (on which see the post Jeremy published yesterday on the IPKat) was a reference from Danish Østre Landsret (Eastern Regional Court).

Danish courts appear to have a fascination with the InfoSoc Directive, and they are very keen on having its many obscure meanings somehow clarified by the CJEU, as happened (indeed ...) with Infopaq, which was a reference from Danish Højesteret.

The reference in Case C-510/10 concerned the interpretation of Article 5(2)(d) of and recital 41 in the preamble to the InfoSoc Directive, which provide for an exception to the exclusive reproduction right of the author in his work ‘in respect of ephemeral recordings of works made by broadcasting organisations by means of their own facilities and for their own broadcasts’.

The proceedings pending before the Danish court are between, on the one hand, broadcasting organisations DR and TV2 Danmark A/S and, on the other hand, copyright management company NCB – Nordisk. They concern recordings made in connection with TV programmes commissioned from a third party by those broadcasting organisations for use in their own transmissions.

To make long story short, the dispute was whether the exception for ephemeral recordings also covers recordings made by legally independent external TV production companies in cases where those recordings have been commissioned from them by DR or by TV2 Danmark for initial broadcast on DR or TV2 Danmark.

The questions which the Østre Landsret decided to refer to the CJEU were three.

EU copyright provisions shall be given an EU-wide meaning

The first question concerned whether the term ‘by means of their own facilities’ in Article 5(2)(d) of the InfoSoc Directive, as clarified by recital 41 in the preamble to that directive, is to be interpreted with reference to national law or to EU law.

EU meaning, or non-EU meaning - that is the question

The CJEU answered the question by referring to Article 2 in that directive, according to which Member States are, in principle, to grant to authors the exclusive right to authorise or prohibit direct or indirect, temporary or permanent, reproduction by any means and in any form, in whole or in part, of their works. However, pursuant to Article 5(2)(d), Member States may provide for an exception or limitation to the author’s exclusive reproduction right in his work in respect of ephemeral recordings of works made by broadcasting organisations ‘by means of their own facilities’ and for their own broadcasts. This proviso, recalled the Court, was directly inspired by that of Article 11bis(3) of the Berne Convention. The EU, although not a party to such Convention, is nevertheless obliged, under Article 1(4) of the WIPO Copyright Treaty (to which it is a party) to comply with the provisions in the Berne Convention.

As Article 11bis(3) of Berne expressly states that it is a matter for legislation in the countries of the Berne Union to determine the regulations for ephemeral recordings made by a broadcasting organisation by means of its own facilities and used for its own broadcasts, by adopting a specific exception for ephemeral recordings in the InfoSoc Directive, the EU exercised the competence previously devolved on the Member States in the field of IP.

Therefore, in line with its earlier decison in Luksan, the CJEU held that the EU must be regarded as having taken the place of the Member States, which are no longer competent to implement the relevant stipulations of the Berne Convention.

The need for a uniform application of EU law and the principle of equality are such that the terms of a provision of EU law (which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope) must normally be given an independent and uniform interpretation throughout the EU.

This said, the expression ‘by means of its own facilities’ must be regarded, for the purposes of applying that directive, as covering an autonomous concept of EU law, which must be interpreted in a uniform manner throughout the EU.

Alternative or cumulative conditions in Article 5(2)(d)? Alternative, also on account of the Charter, says the Court

By its second question, the Danish court asked subtly whether Article 5(2)(d) of the InfoSoc is to be interpreted as meaning that a broadcasting organisation’s own facilities include the facilities of a person acting ‘on behalf of and under the responsibility of the broadcasting organisation’or as meaning that a broadcasting organisation’s own facilities include the facilities of a person acting ‘on behalf of or under the responsibility of the broadcasting organisation’.

Having said that there is a divergence between the different language versions of recital 41 in the preamble to the InfoSoc Directive, the CJEU held that the term ‘own facilities’ includes the facilities of a person acting on behalf of and/or under the responsibility of the broadcasting organisation. Therefore, that provision does not require the ephemeral recordings to be made by the broadcasting organisation itself, but states that, if a third party makes those recordings, the latter are deemed to have been made with the ‘own facilities’ of the broadcasting organisation.


Nothing ephemeral in his recordings

This interpretation, found the Court, also ensures that broadcasting organisations have a greater enjoyment of the freedom to conduct a business, as per Article 16 of the Charter of Fundamental Rights of the European Union, while at the same time not adversely affecting the substance of copyright.

How to ascertain the ephemeral nature of a recording?

By its third question, the Danish court asked what the applicable criteria are for 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 the InfoSoc Directive in respect of ephemeral recordings.

The Court deemed it to be crystal-clear that a recording is ephemeral if the person who makes it may be regarded as acting either ‘on behalf of’ or ‘under the responsibility’ of the broadcasting organisation. Therefore, it is necessary to determine (and this is up to national courts), first, whether the third party in question may be regarded as acting ‘on behalf of’ the broadcasting organisation. If the third party cannot be deemed to be acting ‘on behalf of’ the broadcasting organisation, it will then be necessary to determine whether that third party could be regarded, at the very least, as acting ‘under the responsibility’ of the broadcasting organisation.

Dear Readers, could you think of any way to celebrate World IP Day which could be more amusing than a party of CJEU judges engaging in lively discussions as to whether the recordings they are listening to are ephemeral and, in any case, what is to be meant by ephemeral?