The High Court has ruled that EU law requires performers whose performances are included on sound recordings to receive the same right to equitable remuneration as the recordings’ owners when the recordings are broadcast or communicated to the public. It also declared that Irish law had not properly transposed the relevant EU directive to the extent it failed to provide that right to all qualifying performers.
The ruling was made in a commercial dispute between Recorded Artists Actors Performers Ltd (RAAP), which represents performers, and Phonographic Performance (Ireland) Ltd (PPI), which represents sound-recording producers, together with the Minister for Jobs, Enterprise and Innovation, Ireland and the Attorney General. The judgment was delivered by Mr Justice Garrett Simons on 4 February 2021, following a hearing on the form of order and costs on 29 January.
The case was at the stage of resolving preliminary issues, before a full trial of the underlying contractual dispute. The High Court had referred questions about the EU directive to the Court of Justice of the European Union, which ruled in September 2020. It held that the directive must, as far as possible, be interpreted consistently with the 1996 WIPO Performances and Phonograms Treaty. The High Court said that meant equitable remuneration must extend to performers and phonogram producers who are nationals of EU member states and of other contracting parties to that treaty.
The Irish Copyright and Related Rights Act 2000 limits performers’ entitlement to those who are Irish citizens or domiciled or resident in Ireland, or domiciled or resident in an EEA country. The High Court had previously concluded that the Act could not be read to include non-EEA nationals. In this judgment, it ordered the declarations sought by RAAP on the directive’s requirements and the Act’s failure to transpose them properly.
PPI argued that RAAP could not rely on the transposition failure in a dispute between private entities, and that the earlier finding on the limits of a consistent interpretation meant PPI should prevail. Mr Justice Simons rejected that position, reasoning that PPI had sought the preliminary issues and that the consequences of non-transposition for the contractual dispute had not been decided at that stage. The court did not determine the underlying contractual merits.
RAAP was awarded the costs of the preliminary-issue trial, the Court of Justice reference and the January 2021 hearing. The defendants are jointly and severally liable, with costs to be assessed if not agreed. Costs of the original application to have preliminary issues tried were reserved to the judge at the full trial. The parties were asked to agree a date to relist the case for progression to that hearing.