The High Court has proposed asking the Court of Justice of the European Union to clarify whether performers outside the European Economic Area can share in licence fees for recordings played in public or broadcast. The proposed reference concerns preliminary legal issues in a dispute between Recorded Artists Actors Performers Ltd. (RAAP) and Phonographic Performance (Ireland) Ltd. (PPI), alongside the State defendants. The court has not decided the underlying dispute or whether any performers are entitled to additional payments.
The case concerns fees paid when commercially published recordings are used for broadcasting or communication to the public. Irish law provides for a single equitable remuneration to be shared between qualifying performers and phonogram producers. The parties disagree over performers whose recordings qualify for copyright protection in Ireland but who do not meet the domestic criteria based on citizenship, residence, domicile or where the performance took place.
RAAP argues that performers should be eligible when the recording itself qualifies for protection, relying on the EU Rental and Lending Rights Directive and the WIPO Performances and Phonograms Treaty (WPPT), read alongside the Rome Convention. PPI and the State defendants contend that the Directive does not impose the national-treatment rules RAAP seeks to apply, and that Ireland may set performer eligibility criteria. PPI also argues that Ireland’s treatment of performers from countries outside the EEA may be a lawful response to reservations under the WPPT.
The judgment, delivered by Mr Justice Garrett Simons on 11 January 2019, arose from a trial of preliminary issues ordered by the High Court in March 2018. The issues were argued at a general level, without a detailed determination of the underlying factual dispute. The judge said he had doubts about whether the domestic criteria properly reflected the WPPT, but noted that the treaty had not been incorporated into Irish law and could only matter here as an aid to interpreting the EU Directive.
The court concluded that the Directive’s meaning was not acte clair: it was not sufficiently clear that the correct interpretation could be reached without a reference. The judge proposed questions about how far the Directive should be read in light of the Rome Convention and WPPT, what discretion Member States have in defining “relevant performers”, and how they may respond to another country’s treaty reservation. A further proposed question asks whether remuneration can ever be confined to producers while performers on the same recording are excluded.
No final reference questions were settled in this judgment. The judge said he would hear further submissions from counsel before settling them, including on whether the reference should address possible remedies. The judgment therefore records a proposed procedural step, not a ruling on the merits or an order disapplying Irish legislation.