Key facts of the case:

Request for a preliminary ruling from the High Court (Irlande).

Reference for a preliminary ruling – Intellectual property – Rights related to copyright – Directive 2006/115/EC – Article 8(2) – Use of phonograms in the European Union – Right of the performers to equitable remuneration shared with the phonogram producers – Applicability to nationals of third States – Performances and Phonograms Treaty – Articles 4 and 15 – Reservations notified by third States – Limitations of the right to equitable remuneration that may, on the basis of reciprocity, follow, in the European Union, for nationals of third States from those reservations – Article 17(2) and Article 52(1) of the Charter of Fundamental Rights of the European Union – Fundamental right to the protection of intellectual property – Requirement that any limitation must be provided for by law, respect the essence of the fundamental right and be proportionate – Division between the European Union and the Member States of competences to set those limitations – Division of competences in relations with third States – Article 3(2) TFEU – Exclusive competence of the European Union.

Outcome of the case:

For those reasons, I propose that the Court should answer the questions referred for a preliminary ruling by the High Court (Ireland) as follows:

1. Article 8(2) of Directive 2006/115/EC of the European Parliament and of the Council of 12 December 2006 on rental right and lending right and on certain rights related to copyright in the field of intellectual property is to be interpreted in the light of the requirements of the World Intellectual Property Organisation (‘WIPO’) Performances and Phonograms Treaty (‘the WPPT’) to which the Union is party and as such it is consistent with the Union’s obligation to provide national treatment as required by Article 4 of the WPPT without the need for a specific provision to this effect.
2. A Member State does not have discretion to prescribe criteria for determining which performers qualify as ‘relevant performers’ under Article 8 of Directive 2006/115. In particular, a Member State cannot restrict the right to share in equitable remuneration to circumstances where the performance takes place in the European Economic Area (EEA) irrespective of whether the performers are domiciled in or residents of an EEA country.
3. Member States enjoy no discretion in an area that is the exclusive competence of the Union and are precluded from responding to the reservations entered by other Contracting Parties to the WPPT or from applying criteria other than those set out in Article 8(2) of Directive 2006/115.
4. It is inconsistent with Article 8(2) of Directive 2006/115 to limit the right of equitable remuneration in such a way that performers whose performances are fixed in the sound recording receive no remuneration and it accrues only to the benefit of the record producer.