On 16 May 2019, the CJEU Advocate General delivered his opinion in Spedidam, following the request for a preliminary ruling from the French Supreme Court on whether the French legal framework allowing the French National Audiovisual Institute (“INA“) to use the performances of performers without their written agreement is in compliance with European law. The Advocate General concludes that a presumption of a license may, in principle, comply with EU law but an implied transfer of rights would not.

Existing derogation in favour of the INA

The INA is a commercial State body which is responsible for conserving and enhancing the audiovisual archives of national broadcasting companies.

Pursuant to Article L. 212-4 of the French Intellectual Property Code, the signature of a contract between a performer and a producer for the making of an audiovisual work implies the authorization to fix, reproduce and communicate to the public the performance of the performer.

Faced with the difficulty, if not impossibility, of finding the employment contracts entered into with the performers at stake or of identifying and seeking written authorization from the performers or their successors in title , Law No. 2006-961 of 1 August 2006 on copyright and neighbouring rights in the information society enabled the INA to derogate from the exclusive right of performers, in particular by authorizing the associations representing performers to conclude agreements setting the conditions for the use of the performers’ performances in the above-mentioned archives and the related remuneration.

In this context, successors in title of a performer sued the INA for having commercialized, without authorization, videograms and a phonogram reproducing this performer’s performances which were broadcast by the national broadcasting companies.

On 11 July 2018, the French Supreme Court held that, according to Article 5 and Recital 32 of Directive 2001/29/EC (the “InfoSoc Directive”), Member States may provide for various exceptions and limitations to the reproduction right and the right of communication to the public of performers in certain limited cases, which do not include the INA derogation framework. It therefore requested the CJEU to rule on compliance of the INA’s derogation framework with EU law.

The French Supreme Court considered the solution adopted by the CJEU on unavailable books according to which, even if a directive does not preclude national legislation from pursuing an objective in the cultural interest of consumers and of society as a whole, the pursuit of this objective and of this interest cannot justify a derogation to the protection that authors are ensured by that directive (ECJ, C-301/15, Soulier et Doke, points 29 and 45), which is not provided for by EU law. However, it considered this solution is not transposable to the present case.

Implicit consent to a transfer, no; implied licence, yes

First of all, the Advocate General of the CJEU notes that, by analogy with the Soulier and Doke case relating to copyright, the prior consent of the owner of the right to reproduce or communicate his/her work to the public may be expressed explicitly or implicitly if provided with a mechanism guaranteeing effective and individualized information for performers.

The Advocate General also observes that, according to the Luksan (ECJ, C-277/10) case, the possibility for Member States to establish a presumption of transfer of the rental rights of a film to its producer is justified by the necessary and considerable investment made by the latter.

It is stressed that any derogatory rules on copyright and related rights based on implicit consent or presumption of transfer shall not impair the performer’s right except to the extent that it is necessary to achieve the objective pursued by the regulation. The derogating regulation shall be balanced with the exclusive rights of the holders in the light of the principle of proportionality.

The Advocate General concludes that a system of presumption of consent may, in principle, be applicable to the rights of exploitation of an audiovisual work. However, a transfer of the performer’s rights to the INA, without notice, would constitute a disproportionate harm to the exclusive nature of the performers’ rights, in that it is not sufficiently necessary for the objective pursued, namely the conservation and exploitation of audiovisual recordings. The Advocate General considers, on the contrary, that the French legislation would have complied with EU law if it had simply created a form of implied copyright license in favour of the INA.

This opinion is in line with Article 12 of the new Directive on copyright in the Digital Single Market, which relates to collective licensing with an extended effect: while the EU law facilitates collective licensing, it seems that a national mechanism of implied transfer of the performers’ rights to an entity which did not invest in the related works would breach EU law.