Fonograma

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Based on the conclusions of Advocate General Tanchev (the “AG”), the concept of “reproduction of a phonogram published for commercial purposes” contained in article 8.2 of Directive 2006/115 (the “Directive”) does not envisage equitable remuneration for the artists and the producer of a phonogram published for commercial purposes when synchronized in an audiovisual work by communicating that work to the public.

The dispute underlying the main proceedings arose in the claim filed by the collective rights management entities Asociación de Gestión de Derechos Intelectuales (“AGEDI”) and Artistas, Intérpretes o Ejecutantes, Sociedad de Gestión de España (“AIE”) against Atresmedia Corporación de Medios de Comunicación, S.A. (“Atresmedia”), claiming compensation for unauthorized reproduction and public communication of phonograms synchronized with soundtracks in movies broadcast on their television channels.

The Commercial Court of Madrid rejected AGEDI and AIE’s submissions as it considered that synchronizing a pre-existing phonogram in an audiovisual work under the appropriate paid license entails the disappearance of the phonogram as such and the appearance of a new and autonomous derivative work, and that the remuneration rights for public communication and reproduction of the phonogram expire with the payment for synchronization. The claimants appealed the judgment before the Provincial Court of Appeals of Madrid, which revoked the lower court judgment and fully upheld the management entities’ submissions. In particular, the Court of Appeals sustained the continuity of the phonogram, even after it has been synchronized, therefore generating the equitable remuneration rights payment obligation.

Atresmedia escalated the matter to the Supreme Court, which decided to suspend the main proceedings and ask the Court of Justice of the European Union (“CJEU”) whether the public communication of an audiovisual work entails the public communication of the phonogram synchronized in it and, therefore, the obligation to pay a single equitable remuneration to the artists and producers is generated or if, on the contrary, only the audiovisual work is communicated to the public.

To answer the preliminary question referred, the AG analyzes the legislative background to the Directive, leading him to conclude that the protection of article 8, section 2, of the Directive did not seek to create rights by the public communication of audiovisual works for the artists and producers of the phonogram synchronized in them. The 1961 Rome Convention does not seem to include those rights either. The AG thus states “neither article 12 of the Rome Convention, nor article 8(2) of Directive 92/100 require payment of the single equitable remuneration for the communication to the public of an audiovisual fixation, unless the fixation is a ‘reproduction of [a] phonogram’ published for commercial purposes.” According to the AG, that reproduction does not take place when a phonogram is synchronized in an audiovisual work.

Contrary to AGEDI and AIE’s view, the AG considers that a phonogram that is part of an audiovisual work does not continue being, once incorporated, a phonogram (point 53). The opposite, he states, would be contrary not only to the applicable copyright regulations but also to common sense. The AG points out that this is inferred from the agreed statement on article 2.b of the WPPT which, by establishing that “the definition of phonogram does not suggest that rights over the phonogram are in any way affected through it being incorporated into a cinematographic or audiovisual work,” it sought to establish that phonograms could only be used in audiovisual works based on appropriate contractual arrangements, taking into account the rights of phonogram producers, and that if the phonograms are used again independently from the audiovisual work, they must be regarded again as phonograms. According to the AG, this means that phonograms incorporated in an audiovisual work lose their nature as phonograms for as long as they are part of the audiovisual whole, a nature that they will regain if they are again separated from the audiovisual work. In other words, the status of phonogram is sort of suspended while it is incorporated into an audiovisual work (point 55).

Finally, and with regard to the concept of reproduction and its connection to the act of synchronization, the AG accepts that, actually, copying a pre-existing recording of a song onto the soundtrack of a movie—i.e., synchronizing it—may be regarded as an act of reproduction of the phonogram. He states, however, that in no case does this reproduction make the audiovisual work in which it is synchronized a “reproduction” of the phonogram. The AG concludes that it cannot be stated that the phonogram and the audiovisual work are the same or that the audiovisual work is a reproduction of the phonogram (point 77).

Based on this analysis, the AG proposes answering the preliminary questions taking into consideration that the concepts of phonogram and reproduction of a phonogram under article 8.2 of the Directive do not include the audiovisual work in which a phonogram has been incorporated after obtaining the authorization of the holder of the rights on the phonogram. Consequently, he suggests that the Directive does not require the user of an audiovisual work in which a protected phonogram is incorporated to pay a single equitable remuneration to the holder of the rights on the phonogram when the audiovisual work is communicated to the public.

Authors: Nora Oyarzabal and Marta Zaballos

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