I am on the IPO’s mailing list for news of preliminary references to the Court of Justice of the European Union (“CJEU”). I tend not to mention them until they are reported but every so often a particular case catches my eye.
One such case is C283/10 Circ & Variete Globus Bucureşti v Uniunea Compozitorilor şi Muzicologilor din România – Asociaţia pentru Drepturi de Autor – U.C.M.R. – A.D.A. which was referred by the High Court of Cassation and Justice of Romania. According to the IPO the case concerns communication of musical works to the public and collective management.
In particular, it concerns the interpretation of art. 3 (1) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001:
“Member States shall provide authors with the exclusive right to authorise or prohibit any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them.”
That is the so called communication and making available right which is transposed into English law by s.20 of the Copyright, Designs and Patents Act 1988. The reason it interests me is that the meaning and effect of s.20 was one of the issues in Twentieth Century Fox Film Corporation and Others v Newzbin Ltd  EWHC 608 (Ch) (29 March 2010) in which I represented the defendants.
The precise issue that has been referred to the Court is:
“Is Article 3(1) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 to be interpreted to the effect that ‘communication to the public’ means:
- exclusively communication to the public where the public is not present at the place where the communication originates, or
- also any other communication of a work which is carried out directly in a place open to the public using any means of public performance or direct presentation of the work?
In the event that point (a) represents the correct meaning, does that mean that the acts, referred to in point (b), by which works are communicated directly to the public do not fall within the scope of that directive or that they do not constitute communication of a work to the public, but rather the public performance of a work, within the meaning of Article 11(1)(i) of the Berne Convention?”
I have tried unsuccessfully to find a transcript or press report of the case in which the reference was made. All I have been able to find out is that the first party mentioned in the case appears to be a circus and I think that the other fellows are a collecting society. There have not been many cases on the communication right which derives from art 8 of the WIPO Copyright Treaty and art 10 of the WIPO Performances and Phonograms Treaty so I will await the Advocate-General’s opinion and the judgment of the Court with interest.