«(Directive 92/100/EEC – Rental right and lending right and certain rights related to copyright in the field of intellectual property – Article 8(2) – Broadcasting and communication to the public – Equitable remuneration)»

Approximation of laws – Copyright and related rights – Rental right and lending right of protected works – Directive 92/100 – Broadcasting and transmission to the public – Equitable renumeration – Concept – Uniform interpretation – Implementation by Member States – Criteria – Limits (Council Directive 92/100, Art. 8(2)) Article 8(2) of Directive 92/100 on rental right and lending right and on certain rights related to copyright in the field of intellectual property requires the Member States to lay down rules ensuring that users pay an equitable remuneration when a phonogram is used for broadcasting or any form of communication to the public. The concept of equitable remuneration in that provision must be interpreted uniformly in all the Member States and applied by each Member State; it is for each Member State to determine, in its own territory, the most appropriate criteria for assuring, within the limits imposed by Community law and Directive 92/100 in particular, adherence to that Community concept.In that regard, Article 8(2) does not preclude a model for calculating what constitutes equitable remuneration that operates by reference to variable and fixed factors, such as the number of hours of phonograms broadcast, the viewing and listening densities achieved by the radio and television broadcasters represented by the broadcast organisation, the tariffs fixed by agreement in the field of performance rights and broadcast rights in respect of musical works protected by copyright, the tariffs set by the public broadcast organisations in the Member States bordering on the Member State concerned, and the amounts paid by commercial stations, provided that that model is such as to enable a proper balance to be achieved between the interests of performing artists and producers in obtaining remuneration for the broadcast of a particular phonogram, and the interests of third parties in being able to broadcast the phonogram on terms that are reasonable, and that it does not contravene any principle of Community law.see paras 33, 38, 46, operative part 1-2

JUDGMENT OF THE COURT (Sixth Chamber) 6 February 2003 (1)

((Directive 92/100/EEC – Rental right and lending right and certain rights related to copyright in the field of intellectual property – Article 8(2) – Broadcasting and communication to the public – Equitable remuneration))

In Case C-245/00,

REFERENCE to the Court under Article 234 EC by the Hoge Raad der Nederlanden (Netherlands) for a preliminary ruling in the proceedings pending before that court between

and

on the interpretation of Article 8(2) of 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 (OJ 1992 L 346, p. 61),

THE COURT (Sixth Chamber),,

composed of: J.-P. Puissochet (Rapporteur), President of the Chamber, C. Gulmann, V. Skouris, F. Macken and J.N. Cunha Rodrigues, Judges,

Advocate General: A. Tizzano,

after considering the written observations submitted on behalf of:

having regard to the Report for the Hearing,

after hearing the oral observations of Stichting ter Exploitatie van Naburige Rechten (SENA), represented by E. Pijnacker Hordijk and T. Cohen Jehoram, advocaten, of the Nederlandse Omroep Stichting (NOS), represented by W. VerLoren van Themaat, of the Netherlands Government, represented by J. van Bakel, acting as Agent, and the Commission, represented by H.M.H. Speyart, at the hearing on 2 May 2002,

after hearing the Opinion of the Advocate General at the sitting on 26 September 2002,

gives the following

On those grounds,

THE COURT (Sixth Chamber),

in answer to the questions referred to it by the Hoge Raad der Nederlanden by judgment of 9 June 2000, hereby rules:

Puissochet

Gulmann

Skouris

Macken

Cunha Rodrigues

Delivered in open court in Luxembourg on 6 February 2003.

R. Grass

J.-P. Puissochet

Registrar

President of the Sixth Chamber