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After having introduced to you the legal characteristics of the fair remuneration as well as its implementation thereof by the sector, we would like here address the more contentious issues of the fair remuneration.

Indeed, as always in this matter and since it concerns money that some must pay to others the fair remuneration have been several times challenged in legal proceedings. Lets’s see how.

FAIR REMUNERATION AND COMMUNICATION TO THE PUBLIC

Remember our first post about fair remuneration, this compensation only occurs in two situations wherein artists and producers are entitled to it: 1 when the communications to the public take place in a public place or 2. where the performances are broadcasted (art. 41 of the Law of 30 June 1994 on copyright and related rights).

Quickly, some say that certain communications did not occur “in a public place.”

It was at the Court of Justice of the European Union (CJEU) to finally define what is meant.

The case which has been the most commented was about the fact of being able (or not) to pay the fair remuneration when music is played in dentists’ waiting rooms.

In its judgment SFC v. Mr. Del Corso (C-135/10) of 15 March 2012, the CJEU ruled that a dentist who plays music in his office via a radio device didn’t perform a “communication to the public”. According to the Court, even if the (Italian) dentist chose to communicate the performances via his radio, he didn’t do it publicly because his patients do not constitute a “public” according to the criteria described in the judgment. Patients of the dentist are a small group, closed, and also very limited. In addition, it is fortuitously and independently of their wishes that his patients have access to the recordings, depending on the time of their arrival and the length of their waiting as well as the nature of treatment that is provided to them.

The Court further considers that the playing of music in a dental office does not pursue profit because it will have little or no effect on the turnover of the dentist in question. In the absence of profits, neighboring rights holders are not entitled to compensation.

The ruling of the CJEU covers both the firm and the dentist’s waiting room.

This judgment has the effect of a bomb and was the subject of a huge amount of comments. What is meant by “communication to the public”? Can / should we extend the conclusions of this judgment to other sectors (hairdressers e.g.)?

CONSEQUENCES OF the JUDGMENT IN BELGIUM

Following this judgment, the representatives of the debtors of the fair remuneration asked to amend the decision of the fair remuneration commission related to ” the operational points allocated to the promotion, sale or lease of goods or services” of 10 September 1999  in order to exclude all the liberale professions from the scope of the decision (and on the basis of “diffuse and subjective criteria”, according to the ruling of 30 March 2013-see below).

The fair remuneration commission was not able to reach a consensus. So the representative of the Minister, with his deciding vote, decided to override the opposition of right holders and considered the accepted proposal as a “decision” of the fair remuneration commission.

To become mandatory and enforceable against everyone, the Minister’s delegate had to propose to the Minister to publish in the Belgian Official Gazette a Royal Decree with that “decision”.

The collective management organisations companies of artists and producers submitted a claim before the Court of First Instance of Brussels in order to prevent the publication of the Royal Decree.

In a decision of 30 March 2013, the Court of First Instance considered that prima facie the decision of the representative of the Minister exceeded the powers of the Minister. The Court also found that the decision was not able to allow rightholders to receive a fair compensation for the public communications of their works, communications against which they may not oppose. The “decision” of the commission construed the Del Corso ruling, competence of the sole legislator. There was so clearly an excess of power.

Codification as ministerial reaction

Following this decision (and to keep this subject in his hands), the Minister amended Articles 41 and following of the law of 30 June 1994 on copyright and related rights (articles relating to fair remuneration) when he codified the intellectual property in Book XI of the Great Economics Law Code.

We had already talked about that matter previously.

The codification changes are here twofold: a modification of the concept and the removal of the ‘fair remuneration’ commission.

According to the Minister and to provide greater clarity in this matter, it was proposed to replace the words “communication of a performance in a public place” (article 41 of the 1994 Law) by the words “public performance of a work” (“exécution publique d’une prestation”). “The public performance of a work” is a form of communication to the public of a performance where the audience is present at the place where the communication originates via a specific device, contrary to remote communication (p. 39 of the parliamentary document which also states that “the term” performance “shall be construed in accordance with Directive 2006/115/EC and the case-law of the European Court of Justice.”).

Justified by the difficulty of the working of the committee, the minister chose to remove it rather than improve it.

The reasons given by the Minister are:

  1. the working of the commission was very heavy from an organizational point of view. Indeed, the minister said that if a majority of members were not present, the Minister’s delegate has  to reconvene the commission;
  2. certain decisions were blocked by debtors who had no interest in the decision;
  3. meetings should be held only to extend for another year decisions that were only valid for one year.

If we look more closely each of these reasons, we find that they have, in fact, two reasons: the unwillingness of the debtors to reach an agreement with the representatives of the beneficiaries and the willingness of the Minister to do annual agreements and not multi-year agreements.

The reasons are not reasons therefore. Again, we suspect that the reality is quite different.

The proposed changes will result in the fact that the Minister has now, as for the reprography and the private copy, all the cards in his hands to decide the tariffs of the fair remuneration. This is the minister who now not only will fix the prices of the remuneration but also who will determine when there is a public performance making liable to the fair remuneration (it was this situation which has been heavily criticized by the Brussels Court in its decision of 30 March 2013).

Fair remuneration becomes now a pure legal license in the sense that not only rates are in the hands of the minister, but also the reasons when the remuneration will be due. Note that this is not the case in reprography and in private copy wherein the Minister can only determine the tariffs and not when the levies are due (these conditions are set up in the Law).

QUID OF UNISONO AFTER the codification?

Following the codification and the substitution of the concept of “communication in a public place” by that of “public performance of a work,” the Unisono collaboration between SABAM and Simim could be challenged.

But we could see this possibility differently.

Unisono is (was soon?) a collaboration between authors (SABAM) and musical works producers (Simim). Artists (via Playright) were excluded from it because Unisono was purely the exercise of exclusive rights, rights that artists could and often were forced to transfer to their producer.

In including the Unisono collaboration in the scope of the fair remuneration “new formula”  and in codifying the fact that the sharing of the income deriving from the fair remuneration is 50-50 between artists and producers and imperative (= contracts may never deprived artists of this 50-50 remuneration), the Minister therefore and de facto involves artists in the sharing of the income of the Unisono collaboration.

Note that following the provision of article66bis, § 2 of the Belgian copyright Law, the Minister may force collective management organisations involved in the public performance of musical works (= fair remuneration + Unisono) and those concerned with reprography, private copy and/or public lending right to collaborate together every time.

Axel Beelen