Comments on Atresmedia -- what rights of performers are, or are not, applicable in case of embodiment of phonograms in audiovisual works
In its Atresmedia judgment (Case C-147/19; ECLI:EU:C:2020:935), the Court of Justice of the E.U. (CJEU) has found that, when a phonogram is incorporated into an audiovisual work, it loses its quality of phonogram. Consequently, the rights in the phonogram cease to be applicable (although the phonogram regains its quality when published later separately). The Court has deduced from this finding that, as long as a phonogram is embodied in an audiovisual work, the right of performers and producers of phonograms to a single equitable remuneration provided in Article 8(2) of the E.U.’s Rental, Lending and Related Rights Directive (Directive 2006/115/EC) is not applicable. The CJEU has based this finding on a specific interpretation of the agreed statement adopted by the 1996 Diplomatic Conference concerning the definition of “phonogram” under Article 2(b) of the WIPO Performances and Phonograms Treaty (WPPT) – inter alia, with reference to a comment made by the author of this paper in the Guide to the Copyright and Related Rights Treaties Administered by WIPO. In the present paper, the view is expressed that it is not justified to interpret the agreed statement in a way that the right of performers and producers of phonograms to a single equitable remuneration is not applicable as long as the phonogram are embodied in audiovisual works. It is pointed out that no such interpretation may be deduced from the comment quoted by the Court from the WIPO Guide. Reference is made to the overlap between the definitions of “phonogram” under Article 2(b) of the WPPT and “audiovisual fixation” under Article 2(b) of the Beijing Treaty on Audiovisual Performances (BTAP), which is eliminated in favor of the definition of “phonogram”. On the basis of an analysis of the relevant provisions of the WPPT and the BTAP, a possible alternative option is outlined for the protection of the rights of performers in case of incorporation of phonograms in audiovisual fixations (= audiovisual works) – in their “performances fixed in audiovisual fixations The author acknowledges and thanks Pál Tomori, Director of the Hungarian Bureau for the Protection of Performers Rights (EJI), as well as José Luis Sevillano, Managing Director, Álvaro Hernandez-Pinzón García, Director of Legal Department and Paloma López Paláez, International Area Director of the Spanish Society of Performers (AIE) for their comments and suggestions.