RAAP: the obvious, the missing, the regrettable and the desirable
In this article, a tentative analysis is made of the RAAP v. PPI judgment of the Court of Justice of the European Union (CJEU) (hereinafter: RAAP). Tentative because the Court’s rulings are very complex; so much that the commentator has also to cross a mine field of questions where great caution is needed; such as whether the Court has erred concerning certain key aspects of the case and that it even has stepped through the limits of the borderline between EU and Member States competences. The article contains four substantive titles. The titles are construed in a way that they also sum up the key findings. In this way they, with some comments, may also serve together as a kind of “abstract”. The first title is this: “Certain rulings in RAAP are responses to preliminary questions that boil down to asking the Court whether or not the text of the relevant international, EU and national norms truly read in the way they obviously do” (“the obvious”). This is reference to point 1 (if it is read alone), and in particular to point 3, of the rulings. The second title reads as follows: “There are certain conflicts of the Irish law and the PPI’s practice with the international and EU norms that are not touched upon either in the preliminary questions or in the CJEU judgment” (“the missing”). The most basic conflict of the Irish Copyright and Related Rights Act (CRRA) with the international and EU norms is that, while – under both Article 15 of the WPPT and Article 8 of the Rental, Lending and Related Rights Directive (Directive 2006/115/EC) – the right to a single equitable remuneration of performers and producers of phonograms to be paid by the users, Article 208(1) of the CRRA provides that “[a] performer has a right to equitable remuneration from the owner of the copyright in a sound recording.” PPI seemed to base its practice on this provision to reduce the role of RAAP to a mere counter to pay the remuneration to those performers to whom PPI had distributed it. It is the third title where the commentator needs great caution to address certain delicate issues. Nevertheless, under this title, this opinion is presented: “With due respect, it is regrettable that it seems that the CJEU’s ruling on the obligation to apply the right provided in Article 8 of Directive 2006/115/EC to performances and phonograms of nationals of States that are not members of the EEA and are not protected under the WPPT is not well-founded; one cannot speak about the non-application of a non-existing right as a ‘limitation’ of a right; such performances and phonograms are outside the contours of copyright and related rights (which is adequately clarified in the existing laws of the EU Member States) (“the regrettable”). It is regrettable that the Court has derived its ruling from Article 52(1) of the Charter of Fundamental Rights of the European Union which is about the general criteria of applying limitations of IP rights, because there are no right to limit in the case of not-protected subject matter; that it has intervened (and not in a fortunate way) into the regulation of a system which had been adequately established and applied by the Member States without any problem whatsoever; and that in this way it has created unexpected disruptions in well-functioning national systems to support creativity and protect cultural diversity. The fourth and last title is this: “It is desirable to make it clear in the EU law that no remuneration is due for the uses of performances and phonograms not protected in the EU; nevertheless, where a lump-sum paid by the users is still calculated to also cover such uses, (i) in the absence of EU legislative norms, the corresponding remuneration may be transferred to the foreigners on the basis of reciprocity; (ii) it may be transferred to foreigners without reciprocity; and (iii) it (as not-for-distribution remuneration) may be used in the same way as non-distributable fees, for cultural and social purposes” (“the desirable”). Both measures are necessary; that is, reestablishing the limits of international obligations and eliminating the unexpected disruption of the well-functioning forms of using not-for-distributable remuneration in certain Member States the same way as non-distributable remuneration.