Circ & Variete Globus Bucureşti v Uniunea Compozitorilor şi Muzicologilor din România – Asociaţia pentru Drepturi de Autor – U.C.M.R. – A.D.A.

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 [2010] 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.

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About Jane Lambert

I am a barrister specializing in intellectual property, technology, media and entertainment and competition law. I specialize in helping SME (small and medium enterprises) protect and exploit their investment in brands, design, technology and the arts. SME require intellectual property (legal protection for their intellectual assets) at least as much as big business but their limited means restrict the way they can use it. Looking after such clients wisely requires skills and knowledge which have taken me years to learn.
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4 Responses to Circ & Variete Globus Bucureşti v Uniunea Compozitorilor şi Muzicologilor din România – Asociaţia pentru Drepturi de Autor – U.C.M.R. – A.D.A.

  1. Jane Lambert says:

    Thanks for the reference, Peter.

  2. Peter Groves says:

    I am trying to work this out for my latest podcast. Here’s what I think might be going on:

    It seems to me that the answer to question 1 is not going to be too difficult – Romanian copyright law recognises a right to control performances, so it’s not as if someone is casting around to find a way to bring something within the copyright system that isn’t already in it. I suspect that there’s some issue about the collecting society’s mandate, whether it extends to communication right or just to performances.

    I have asked a friend in Bucharest if he can shed any light. I’ll probably end up knowing more about this than I really need to – in fact, I probably already do …

  3. Jane Lambert says:

    That would be useful. I’d be interested in posting his comments.

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