In a case opposing the scriptwriter/director of a documentary film, Mr Luksan, and the producer of the film, Mr van der Let, the European Court of Justice has given comfort to European scriptwriters and directors, clarifying their exploitation rights and their right to fair compensation for private copying in the films they create. The Judgement issued on 9th February 2012 was on a reference for a preliminary ruling from an Austrian court and had to deal with the Austrian copyright law dating back to 1936.
First of all –The exploitation rights of audiovisual authors.
The Court has judged that national laws which would allocate the authors’ exploitation rights exclusively to the producer would contradict European law and effectively bans national laws which organise statutory assignment or compulsory transfer of authors’ exploitation rights to the producer. The Court stated that European law can only tolerate a presumption of transfer, “provided that such a presumption is not an irrebuttable one precluding the authors from agreeing otherwise” i.e. that Austrian authors regain the capacity to negotiate their exclusive rights.
This is a very important reaffirmation of audiovisual authors’ rights in the EU and of the obligations of Member States in respect of the acquis communautaire formed by the European Directives on copyright.
To justify its 1936 law, the Austrian Government, in its submission, had invoked paragraph 3, of Article 14bis of the Berne Convention, an article which relates to cinematographic works and which, according to the Austrian government, authorises it to grant exploitation rights to the producer alone. The Court examined whether a Member State may, in its national legislation, and on the basis of Article 14bis of the Berne Convention, deny the author the rights to exploit the film. The Court said “When such an agreement allows, but does not require, a Member State to adopt a measure which appears to be contrary to European Union law, the Member State must refrain from adopting such a measure” (paragraph 62).
The Court continued, “case-law must also be applicable mutatis mutandis when, because of a development in European Union law, a legislative measure adopted by a Member State in accordance with the power offered by an earlier international agreement appears contrary to European Union law. In such a situation, the Member State concerned cannot rely on that agreement in order to exempt itself from the obligations that have arisen subsequently from European Union law” (paragraph 63).
“In providing that the principal director of a cinematographic work is to be considered its author or one of its authors, the European Union legislature exercised the competence of the European Union in the field of intellectual property. In those circumstances, the Member States are no longer competent to adopt provisions compromising that European Union legislation. Accordingly, they can no longer rely on the power granted by Article 14bis of the Berne Convention” (paragraph 64).
Secondly – private copying remuneration
In addition, the Court examined the right to fair compensation payable to authors under the private copying exception (Article 5(2)(b) of the Directive2001/29). The Court stated that there is no provision of the Directive that could lead to an interpretation that the European Union legislature envisaged the possibility of this right being waived by the person entitled to it. The Court recalled last year’s ruling in case C‑462/09 Stichting de Thuiskopie when it said “unless it is to be deprived of all practical effect, Article 5(2)(b) of Directive 2001/29 imposes on a Member State which has introduced the private copying exception into its national law an obligation to achieve a certain result, in the sense that that State must ensure, within the framework of its powers, that the fair compensation intended to compensate the rightholders harmed for the prejudice sustained is actually recovered. Imposition on the Member States of such an obligation to achieve the result of recovery of the fair compensation for the rightholders proves conceptually irreconcilable with the possibility for a rightholder to waive that fair compensation” (paragraph 106).
European Union law therefore precludes national legislation which would allow an author of cinematographic work to waive his right to fair compensation.
The Court concluded “European Union law must be interpreted as not allowing the Member States the option of laying down a presumption of transfer, in favour of the producer of a cinematographic work, of the right to fair compensation vesting in the principal director of that work, whether that presumption is couched in irrebuttable terms or may be departed from”.
So, this is a very significant decision on two counts. Audiovisual authors are never in a strong position when it comes to their exclusive rights. They need strong legislation to protect them. European legislators need to see the opportunity of legislation for the new online markets as an opportunity to further strengthen them.