Recorded Artists Actors Performers Ltd v Phonographic Performance (Ireland) Ltd

• Jurisdiction: Ireland
• Judge: Mr Justice Garrett Simons
• Judgment Date: 11 January 2019
• Neutral Citation: [2019] IEHC 3
• Docket Number: 2016 No. 10801 P.
• Court: High Court
• Date: 11 January 2019

BETWEEN

RECORDED ARTISTS ACTORS PERFORMERS LIMITED

PLAINTIFF

AND

PHONOGRAPHIC PERFORMANCE (IRELAND) LIMITED

DEFENDANT

[2019] IEHC 3

2016 No. 10801 P.

THE HIGH COURT

Preliminary issues – Licence fees – Remuneration – High Court seeking trial of preliminary issues – Whether the plaintiff or the defendant bears the statutory obligation of determining the amount of the payments to be made by way of equitable remuneration to individual performers

Facts: The plaintiff, Recorded Artists Actors Performers Ltd (RAAP), instituted two sets of proceedings against the defendant, Phonographic Performance (Ireland) Ltd (PPI). Both sets of proceedings raised issues as to the sharing of the licence fees as between (i) the owner of the copyright in the sound recording, i.e. the producer, and (ii) the performers whose performances have been fixed in the sound recording. The principal issue in the first set of proceedings concerned the criteria prescribed in domestic law for determining which performers qualify to share in the licence fee. RAAP contended that the criteria do not comply with a European Directive on rights related to copyright protection (Directive 2006/115/EC). The principal issue in the second set of proceedings concerned the statutory functions of the organisations which represent producers and performers, respectively. In particular, an issue arose as to which organisation is charged with calculating the licence fees payable to individual performers. RAAP contended that this role resides with it, as the collective management organisation representing performers. On this argument, PPI is required to make a lump sum payment to RAAP, and RAAP will then distribute that sum—less deductions for administrative costs—to individual performers. There was a second issue as to whether RAAP is entitled to collect on behalf of all of the performers within a particular class, or only those performers who have actually assigned that right to it. By the order of the High Court (Cregan J) of 30 April 2018, the trial of a number of preliminary issues was directed in each of the two sets of proceedings. The trial of the preliminary issues came on for hearing before Simons J. The first preliminary issue was framed as follows by the order of the High Court of 30 April 2018: “Whether s. 208(1) The Copyright & Related Rights Act, 2000 (The Act of 2000), places the statutory obligation to determine the payments to be made by way of equitable remuneration to performers upon the Plaintiff (RAAP), and not the Defendant (PPI)?” The second preliminary issue was defined as follows in the order of 30 April 2018: “Whether, under s. 281 of the Act of 2000, RAAP is entitled to receive all remuneration payable by PPI to performers arising out of the playing in public, broadcasting or cable transmission of recordings of their performances in the State.”

Held by Simons J that his conclusions in respect of the first preliminary issue were as follows. A collecting society is entitled (i) to negotiate on behalf of its members, and (ii) to collect the amounts payable in accordance with a scheme of distribution. A collecting society has no function in making the final determination as to how licence fees are to be distributed between (i) performers and producers, and (ii) performers intra se. That function resides with the Controller. The separate mechanical function of calculating the amount of the payments accruing to individual performers in accordance with a distribution scheme is a matter for the producer (or its representative). Simons J held that his conclusions in respect of the second preliminary issues were as follows. Registration as a licensing body under s. 280 does not confer a presumptive right to act on behalf of all performers within the registered classes without any requirement for assignment or licensing. Applying this to the facts of the case, RAAP was only entitled to collect the equitable remuneration on behalf of those individual performers who have actually assigned the right to do so to it pursuant to the provisions of s. 208(2).

Simons J held that he would hear counsel as to the precise form of the order to be made on the preliminary issues.

Judgment approved.

JUDGMENT of Mr Justice Garrett Simons delivered on 11 January 2019

‘RAAP’ Recorded Artists Actors Performers Ltd. ‘PPI’ Phonographic Performance (Ireland) Ltd.

OVERVIEW

1 These proceedings relate to an ongoing dispute as to the distribution of licence fees payable in respect of the secondary use of recorded music. Secondary use refers to activities such as inter alia the playing of recorded music in public, or its use in radio or television broadcasts.

2 These proceedings are the second of two sets of proceedings which the plaintiff, Recorded Artists Actors Performers Ltd. (‘ RAAP’) has instituted against Phonographic Performance (Ireland) Ltd. (‘ PPI’). Both sets of proceedings raise issues as to the sharing of the licence fees as between (i) the owner of the copyright in the sound recording, i.e. the producer, and (ii) the performers whose performances have been fixed in the sound recording.

3 The principal issue in the first set of proceedings, Recorded Artist Actors Performers Ltd v. Phonographic Performance (Ireland) Ltd. (High Court 2016 No. 6897 P.), concerns the criteria prescribed in domestic law for determining which performers qualify to share in the licence fee. RAAP contends that the criteria do not comply with a European Directive on rights related to copyright protection ( Directive 2006/115/EC).

4 The principal issue in the second set of proceedings concerns the statutory functions of the organisations which represent producers and performers, respectively. In particular, an issue arises as to which organisation is charged with calculating the licence fees payable to individual performers. RAAP contends that this role resides with it, as the collective management organisation representing performers. On this argument, PPI is required to make a lump sum payment to RAAP, and RAAP will then distribute that sum—less deductions for administrative costs—to individual performers. There is a second issue as to whether RAAP is entitled to collect on behalf of all of the performers within a particular class, or only those performers who have actually assigned that right to it.

5 By the order of the High Court (Cregan J.) of 30 April 2018, the trial of a number of preliminary issues was directed in each of the two sets of proceedings. The trial of the preliminary issues came on for hearing before me on 20 November 2018, and ran for four days. I am delivering judgment in both sets of proceedings this morning (11 January 2019).

LEGISLATIVE BACKGROUND

6 In order to put the preliminary issues the subject-matter of this judgment into context, it is necessary to provide a brief summary of the legislative background.

Directive 2006/115/EC

7 The starting point is the relevant European Directive on rights related to copyright, namely Directive 2006/115/EC (‘ the 2006 Directive’). The 2006 Directive is a codified version of an earlier directive, namely Directive 92/100/EEC (‘ the 1992 Directive’). Both versions of the Directive provided for a shared right of equitable remuneration as between the owner of the copyright in a sound recording, i.e. a producer, and the performers. In each version of the Directive, the relevant provision is found at article 8, and is in the following terms.

‘Article 8

Broadcasting and communication to the public

1. Member States shall provide for performers the exclusive right to authorise or prohibit the broadcasting by wireless means and the communication to the public of their performances, except where the performance is itself already a broadcast performance or is made from a fixation.

2. Member States shall provide a right in order to ensure that a single equitable remuneration is paid by the user, if a phonogram published for commercial purposes, or a reproduction of such phonogram, is used for broadcasting by wireless means or for any communication to the public, and to ensure that this remuneration is shared between the relevant performers and phonogram producers. Member States may, in the absence of agreement between the performers and phonogram producers, lay down the conditions as to the sharing of this remuneration between them.

3. Member States shall provide for broadcasting organisations the exclusive right to authorise or prohibit the rebroadcasting of their broadcasts by wireless means, as well as the communication to the public of their broadcasts if such communication is made in places accessible to the public against payment of an entrance fee.’

8 As appears, article 8(2) envisages two steps, first, the user of the sound recording is to make a single payment (‘equitable remuneration’); and secondly, this equitable remuneration is then to be shared between the relevant performers and phonogram producers.

9 The Irish State did not implement the 1992 Directive within the time allowed, and this delay was the subject of infringement proceedings before the Court of Justice, Case C 213/98 Commission v. Ireland, EU:C:1999:496.

10 The Irish State has since implemented the requirements of what was the 1992 Directive and is now the 2006 Directive in the Copyright and Related Rights Act 2000 (‘ Copyright Act 2000’). The two steps envisaged by article 8(2) are reflected under section 38, and sections 205 and 208 of the Copyright Act 2000.

Section 38

11 Section 38 provides for the payment of a single licence fee by a person who wishes to play recorded music in a public place or to include a sound recording in a broadcast. This licence fee is payable by the user to a licensing body which represents producers. A ‘licensing body’ is defined for this purpose as follows.

‘(15) Notwithstanding section 149, in this section “licensing body” means a society, a...