Royalties row between performers and record companies referred to EU

The Court of Justice of the EU (CJEU) is to be asked to determine whether Irish law is consistent with EU law by excluding certain performers not based in Ireland or European Economic Area (EEA) countries from a share of royalty payments.

The High Court has referred a number of questions to the CJEU arising out of an action brought by the Recorded Artists Actors Performers (RAAP) organisation which represents performers.

The case is against Phonographic Performance Ireland (PPI), which represents record companies/producers and collects royalties, as well as against the Minister for Jobs Enterprise and Innovation which enforces compliance with copyright law.

In a second related case, Mr Justice Garrett Simons found while RAAP is entitled to negotiate on behalf of its members and collect the amounts payable in accordance with a scheme of distribution it 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 inter se.

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 PPI.

Mr Justice Simons said that under the Copyright Act 2000, RAAP is only entitled to collect "equitable remuneration" on behalf of individual performers who have actually assigned it the right to do so.

The High Court heard the central issue in the first case over interpretation of an 2006 EU Directive on copyright was whether US performers should get royalties on performances in Ireland when Irish performers do not get the same in the US.

RAAP had claimed that under a 2002 agreement PPI agreed to pay 50 per cent of royalty income for any qualifying recording in any qualifying (EEA) country.

A dispute arose in 2013 when PPI began making deductions from the amount for qualifying recordings where they did not take place in a qualifying country, RAAP said.

RAAP also claimed PPI retains for itself, and its record company members and members of foreign affiliates, not only 50 per cent of the income collected from "qualifying" recordings, but up to 100 per cent of income from other recordings it (PPI) believes to be either non-qualifying or only partially qualifying.

PPI maintained that non-EEA performers were not entitled to any share of royalties notwithstanding that the recording itself did not attract a licence fee and, in effect, the money goes to the record company/producer alone.

RAAP refuted this and said the correct criteria should be whether the recording attracts copyright protection and if it does, then the performer is entitled to a share.

Mr Justice Simons said this case related to the proper interpretation of EU Directive 2006/115/EC and its interaction between domestic law and two international treaties on copyright, the 1961 Rome Convention and the WIPO Performances and Phonograms Treaty of 1996 (WPPT).

He ruled the matter should be referred to the CJEU under the Treaty on the Functioning of the EU for a preliminary ruling in relation to a number of issues.

These include whether there is an obligation on a national court to interpret the 2006 Directive on certain intellectual property rights in relation to the two international treaties.

The court is also to be asked to determine whether a Member State has discretion to prescribe what is a "relevant performer" under the Directive, in particular in relation to when a performance takes place in an EEA country or when the performers live in an EEA country.

The court is also to be asked whether it is permissible in any circumstances to confine the right to royalties to the producers of recordings and deny the right to performers on those recordings.

In relation to the second case over distribution of royalties, RAAP had contended it was entitled to calculate royalties payable and then distribute them, less administrative costs, to individual performers. The PPI argued it had a statutory duty to determine payments to performers

Mr Justice Simons said if the legislative intent been to create a form of exclusive licence contended for by RAAP, the criteria would have been contained in the 2000 Act but were not.

The legislative intent requiring a collection body to register under the Act was merely to provide a publicly accessible register of entities holding themselves out as willing to collect royalties on behalf of certain classes of performers, he said.

- This article has been amended on January 12

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