High Court refers music royalties dispute to Europe

Central issue for ECJ to decide is whether US performers should get royalties for Irish gigs

Taylor Swift on stage in  Croke Park in 2018. Photograph: Dave Meehan

Taylor Swift on stage in Croke Park in 2018. Photograph: Dave Meehan

 

The European Court of Justice (ECJ) is to be asked to determine whether Irish law is consistent with EU law by excluding certain performers not based in Ireland or European Economic Area (EEA) countries from a share of royalty payments. The EEA is made up EU member states and Norway, Iceland and Liechtenstein.

The High Court has referred a number of questions to the ECJ arising out of an action by the Recorded Artists Actors Performers (RAAP) organisation which represents performers.

The case is against Phonographic Performance Ireland (PPI), which represents record companies/producers and collects royalties, as well as against the Minister for Jobs Enterprise and Innovation which enforces compliance with copyright law.

In a second related case, Mr Justice Garrett Simons found, while RAAP is entitled to negotiate on behalf of its members and collect royalties from broadcasters and public venues, it has no function in making a final determination as to how that money is to be distributed. That function resides with the controller of patents and designs, he said.

The judge said that, under the Copyright Act 2000, RAAP is only entitled to collect “equitable remuneration” on behalf of performers who have assigned it the right to do so.

The central issue in the first case over interpretation of an 2006 EU directive on copyright was whether US performers should get royalties on performances in Ireland when Irish performers do not get the same in the US.

RAAP had claimed that, under a 2002 agreement, PPI agreed to pay 50 per cent of royalty income for any qualifying recording in any qualifying country. A dispute arose in 2013 when PPI began making deductions from the amount for qualifying recordings where they did not take place in a qualifying country, RAAP said.

PPI maintained that non-EEA performers were not entitled to any share of royalties.

Interpretation

Mr Justice Simons said the case related to proper interpretation of EU Directive 2006/115/EC and its interaction between domestic law and two international treaties on copyright, the 1961 Rome Convention and the WIPO Performances and Phonograms Treaty of 1996 (WPPT).

He ruled the matter should be referred to the ECJ for a preliminary ruling in relation to a number of issues.

These include whether there is an obligation on a national court to interpret the 2006 directive on certain intellectual property rights in relation to the two international treaties. The court is also to be asked to determine whether a member state has discretion to prescribe what is a “relevant performer” under the directive, in particular in relation to when a performance takes place in an EEA country or when the performers live in an EEA country.

The court is also to be asked whether it is permissible in any circumstances to confine the right to royalties to the producers of recordings and deny the right to performers on those recordings.