Provisional text

OPINION OF ADVOCATE GENERAL

SZPUNAR

delivered on 24 October 2024 (1)

Case C‑575/23

FT,

AL,

ON

v

État belge,

intervener:

Orchestre national de Belgique (ONB)

(Request for a preliminary ruling from the Conseil d’État (Belgium))

( Reference for a preliminary ruling – Approximation of laws – Intellectual property – Copyright and related rights – Related rights of statutory orchestra musicians – Directive 2001/29/EC – Article 2 and Article 3(2) – Right of reproduction and right of making available to the public – Directive 2006/115/EC – Articles 7 to 9 – Rights of fixation, broadcasting and communication to the public and of distribution – Directive (EU) 2019/790 – Article 26 – Temporal application – Articles 18 to 23 – Scope – Principle of appropriate and proportionate remuneration – Principle of freedom of contract – Assignment of related rights by regulation )

 Introduction

1.        Authors are not the only persons who enjoy intellectual property rights over their works. Specific rights, known as ‘rights related to copyright’ (‘related rights’ (2)), are conferred on the auxiliaries to artistic creation, to performers in particular.

2.        Those related rights, which protect performers’ performances against unauthorised exploitation, are analogous to copyright. Not only do they concern, roughly, the same acts of exploitation, but they also have the same character of exclusive rights in that they allow the use of those performances to be authorised or prohibited.

3.        However, performers often find themselves in situations which make exercising their rights more complicated than exercising copyright. Firstly, far more often than authors, performers carry out their activity in the context of an employment relationship. Secondly, while a work frequently has a single author or a limited number of authors, for example a music composer and a lyricist, performers often perform in ensembles of varying sizes, such as a music group, a theatre troupe or, as in the present case, an orchestra.

4.        It is therefore necessary to organise the exercise of the related rights of performers in such a way as to reconcile it with the legitimate interests of their employers and with the proper functioning of the ensembles to which they belong. The present case concerns more specifically the question of the extent to which the related rights of performers employed under the status of public servants may be limited by regulation in order to ensure the proper functioning of the institution to which they are attached.

 Legal framework

 International law

5.        The International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations was concluded in Rome on 26 October 1961 (‘the Rome Convention’). The European Union is not a party to the Rome Convention; however, all of the Member States, with the exception of the Republic of Malta, are. While that convention establishes obligations, in relation to protecting the rights of performers, (3) only for performances which are fixed, recorded or broadcast in a country other than that where protection is claimed, it nevertheless constitutes the minimum international standard of protection. Other acts of international law, as well as relevant acts of EU law, make reference to it and must be interpreted in accordance with it. (4)

6.        Articles 7, 8 and 15 of the Rome Convention provide as follows:

‘Article 7

1.      The protection provided for performers by this Convention shall include the possibility of preventing:

(a)      the broadcasting and the communication to the public, without their consent, of their performance, except where the performance used in the broadcasting or the public communication is itself already a broadcast performance or is made from a fixation;

(b)      the fixation, without their consent, of their unfixed performance;

(c)      the reproduction, without their consent, of a fixation of their performance:

(i)      if the original fixation itself was made without their consent;

(ii)      if the reproduction is made for purposes different from those for which the performers gave their consent;

(iii)      if the original fixation was made in accordance with the provisions of Article 15, and the reproduction is made for purposes different from those referred to in those provisions.

…

Article 8

Any Contracting State may, by its domestic laws and regulations, specify the manner in which performers will be represented in connection with the exercise of their rights if several of them participate in the same performance.

…

Article 15

…

2.      Irrespective of paragraph 1 of this Article, any Contracting State may, in its domestic laws and regulations, provide for the same kinds of limitations with regard to the protection of performers … as it provides for, in its domestic laws and regulations, in connection with the protection of copyright in literary and artistic works. However, compulsory licences may be provided for only to the extent to which they are compatible with this Convention.’

7.        Although the European Union is not a party to the Rome Convention, it is a party to the World Intellectual Property Organization (WIPO) Performances and Phonograms Treaty, adopted in Geneva on 20 December 1996 and approved on behalf of the European Community by Council Decision 2000/278/EC of 16 March 2000 (5) (‘the WPPT’). According to Article 1(1) of the WPPT:

‘Nothing in this Treaty shall derogate from existing obligations that Contracting Parties have to each other under the [Rome Convention].’

8.        Articles 6 to 10 of the WPPT give performers the ‘exclusive right of authorizing’:

–        the broadcasting and communication to the public of their unfixed performances,

–        the reproduction of their performances fixed in phonograms,

–        the distribution through transfer of ownership and commercial rental to the public of copies of their performances fixed in phonograms,

–        the making available to the public of their performances fixed in phonograms in such a way that members of the public can access them from a place and at a time individually chosen by them.

9.        Article 16(1) of the WPPT allows contracting parties to provide, in their national legislation, for the same kinds of limitations or exceptions with regard to the protection of performers as they provide for, in their national legislation, in connection with the protection of copyright.

 European Union law

10.      Articles 2 and 3 of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (6) provide as follows:

‘Article 2

Member States shall provide for the exclusive right to authorise or prohibit direct or indirect, temporary or permanent reproduction by any means and in any form, in whole or in part:

…

(b)      for performers, of fixations of their performances;

…

Article 3

…

2.      Member States shall provide for the exclusive right to authorise or prohibit the making available to the public, by wire or wireless means, in such a way that members of the public may access them from a place and at a time individually chosen by them:

(a)      for performers, of fixations of their performances;

…’

11.      Articles 3 and 7 to 10 of Directive 2006/115/EC of the European Parliament and of the Council of 12 December 2006 on rental right and lending right and on certain rights related to copyright in the field of intellectual property (7) provide as follows:

‘Article 3

1.      The exclusive right to authorise or prohibit rental and lending shall belong to the following:

…

(b)      the performer in respect of fixations of his performance;

…

Article 7

1.      Member States shall provide for performers the exclusive right to authorise or prohibit the fixation of their performances.

…

Article 8

1.      Member States shall provide for performers the exclusive right to authorise or prohibit the broadcasting by wireless means and the communication to the public of their performances, except where the performance is itself already a broadcast performance or is made from a fixation.

…

Article 9

1.      Member States shall provide the exclusive right to make available to the public, by sale or otherwise, the objects indicated in points (a) to (d), including copies thereof, hereinafter “the distribution right”:

(a)      for performers, in respect of fixations of their performances;

…

Article 10

…

2.      Irrespective of paragraph 1, any Member State may provide for the same kinds of limitations with regard to the protection of performers … as it provides for in connection with the protection of copyright in literary and artistic works.

However, compulsory licences may be provided for only to the extent to which they are compatible with the Rome Convention.

…’

12.      Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC (8) lays down, in Articles 18 to 23 thereof, in favour of performers:

–        the principle of appropriate and proportionate remuneration where they license or transfer their exclusive rights for the exploitation of their subject matter,

–        a transparency obligation from the parties to whom they have licensed or transferred their rights, in particular as regards modes of exploitation, all revenues generated and remuneration due,

–        the entitlement to claim additional, appropriate and fair remuneration when the remuneration originally agreed turns out to be disproportionately low compared to all the subsequent relevant revenues derived from the exploitation of the works or performances,

–        a voluntary, alternative dispute resolution procedure for disputes concerning the transparency obligation and the right to additional remuneration,

–        the right to revoke a licensing or a transfer of their exclusive rights,

–        the principle of unenforceability of any contractual provision contrary to the rules referred to in the second, third and fourth indents above.

13.      Article 26 of that directive provides:

‘1.      This Directive shall apply in respect of all works and other subject matter that are protected by national law in the field of copyright on or after 7 June 2021.

2.      This Directive shall apply without prejudice to any acts concluded and rights acquired before 7 June 2021.’

 Belgian law

14.      Under Belgian law, related rights are governed in Chapter 3 of Title 5 of Book XI of the Code de droit économique (Code of Economic Law). Articles XI.203 and XI.205 of that code, in the version in force at the time of the facts in the main proceedings (‘the Code of Economic Law’), provided inter alia:

‘Article XI.203

…

The related rights recognised in this chapter shall be movable, assignable and transmissible, in full or in part, in accordance with the rules laid down in the Civil Code. They may in particular be disposed of or be the subject of an ordinary or exclusive licence.

…

Article XI.205

1.      Only the performer has the right to reproduce his or her performance or to authorise the reproduction of his or her performance, in any manner or form, whether direct or indirect, temporary or permanent, in full or in part.

That right includes inter alia the exclusive right to authorise the rental or lending thereof.

Only the performer has the right to communicate his or her performance to the public by any means, including making available to the public in such a way that members of the public may access it from a place and at a time individually chosen by them.

The rights of the performer include inter alia the exclusive right of distribution …

…

3.      With regard to the performer, all contracts must be evidenced in writing.

The contractual provisions relating to the rights of performers and their modes of exploitation must be interpreted strictly. The assignment of an object incorporating the fixation of a performance shall not entail the right to exploit that fixation.

…

4.      Where performances are carried out by a performer in performance of a contract of employment or a statute, the economic rights may be assigned to the employer provided that the assignment of those rights is expressly provided for and that the performance falls within the scope of the contract or statute.

…

Collective agreements may determine the scope and terms of the transfer.’

15.      The Arrêté Royal relatif aux droits voisins du personnel artistique de l’Orchestre national de Belgique (Royal Decree concerning the related rights of artistic personnel of the Belgian National Orchestra (the ‘BNO’)), of 1 June 2021 (‘the act at issue in the main proceedings’), specifically regulates the related rights of performers who are members of the BNO. Article 2 of the act provides:

‘The performer shall assign to the [BNO], in accordance with the provisions of this decree, the related rights in any performances carried out within the framework of the [BNO].’

16.      Under Article 3(1) and (2) of that act:

‘1.            The following related rights shall be assigned to the [BNO] under Article 2 in return for the allowances set out in Articles 4 and 6:

(a)      Right of communication to the public:

–        The right to communicate to the public the performances of performers carried out within the framework of the [BNO] for the purpose of broadcasting and sound retransmission by radio, by cable, by satellite, via internet platforms, by streaming or by any other known or as yet unknown technique;

–        The right to communicate to the public the performances of performers carried out within the framework of the [BNO] for the purpose of broadcasting and audiovisual retransmission by radio, by cable, by satellite, via internet platforms, by streaming or by any other known or as yet unknown technique;

(b)      Rights of reproduction and distribution:

–        The right to reproduce the performances of performers carried out within the framework of the [BNO], in full or in part, in an unlimited number of copies, on any phonographic, videographic or multimedia media, including digital media, known or as yet unknown;

–        The right to distribute media reproducing performances of performers, and the right to make them available for download for private use on a service accessible via a digital data transmission network, particularly the internet, and in general the right to exploit media or have them exploited, including by sale and rental.

2.      The rights assigned in accordance with Article 2 and with the first paragraph of this Article shall be transferred for the entire duration of the related rights and for the entire world …’.

 The facts of the dispute in the main proceedings, the procedure and the questions referred for a preliminary ruling

17.      Before the adoption of the act at issue in the main proceedings, the exploitation of the related rights of the musicians of the BNO was negotiated on a case-by-case basis within a consultative committee. Since 2016, negotiations have taken place between the BNO and the musicians’ trade union delegations within a consultative committee in order to reach agreement on the subject of remuneration for related rights. Those negotiations have not been successful.

18.      In the light of that failure, the competent Belgian authorities decided to resolve the issue through regulation. However, the consultation with the representatives of those musicians on the draft of a regulatory act also failed, which gave rise to the memorandum of disagreement of 12 May 2021.

19.      On 1 June 2021, the Belgian State adopted the act at issue in the main proceedings, which entered into force on 4 June 2021.

20.      By an action brought on 26 July 2021 before the Conseil d’État (Council of State, Belgium), the applicants in the main proceedings sought the annulment of the act at issue in the main proceedings, inter alia claiming, in essence, that its provisions infringed Articles 18 to 23 of Directive 2019/790 as well as Articles XI.203 and XI.205 of the Code of Economic Law.

21.      It was in those circumstances that the Conseil d’État (Council of State) decided to stay proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1)      Must Articles 18 to 23 of Directive [2019/790] be interpreted as precluding the transfer, by means of a regulatory act, of the related rights of statutory employees in performances carried out in the context of the employment relationship?

(2)      If Question 1 is answered in the affirmative, must the concepts of “acts concluded” and “rights acquired” within the meaning of Article 26(2) of Directive [2019/790] be interpreted as covering, in particular, the transfer of related rights by means of a regulatory act adopted before 7 June 2021?’

22.      The request for a preliminary ruling was received at the Court on 15 September 2023. Written observations were submitted by the applicants in the main proceedings, the BNO, the Belgian Government and the European Commission. The same parties were represented at the hearing held on 20 June 2024.

 Analysis

23.      In the present case, the referring court puts to the Court two questions concerning the interpretation of various provisions of Directive 2019/790. Before proceeding with the analysis of the questions themselves, it seems to me necessary to make certain preliminary remarks and proposals regarding how the questions are worded.

 Preliminary remarks

24.      By its questions, the referring court asks the Court as to the interpretation of the provisions of Directive 2019/790 relating to the related rights of performers, in order to assess whether those provisions of the act at issue in the main proceedings are in conformity with the directive (first question), and, more specifically, as to the applicability ratione temporis of that directive in dispute in the main proceedings (second question).

25.      However, in accordance with established case-law, it is for the Court to extract from all the information provided by the national court, in particular from the grounds of the decision to make the reference, the points of EU law which require interpretation in view of the subject matter of the dispute. (9) In the case at hand, I am of the opinion that the questions referred need to be supplemented.

26.      The relevant provisions of Directive 2019/790 after all are not autonomous in nature and are not readily interpreted in isolation. Although, by virtue of Article 1(2) thereof, that directive leaves intact and in no way affects the existing rules laid down by, inter alia, Directives 2001/29 and 2006/115 in relation to the provisions relating to the related rights of performers, it would nevertheless be more accurate to say that those rules ‘graft’ onto the relevant provisions of those directives in order to enhance their effectiveness. (10) The provisions of Directive 2019/790 referred to in the questions referred for a preliminary ruling must thus be interpreted in conjunction with those of Directives 2001/29 and 2006/115 which confer related rights on performers.

27.      What is more, it is apparent from the request for a preliminary ruling that the pleas raised against the act at issue in the main proceedings relate to its conformity not only with the provisions of Directive 2019/790 but also with, inter alia, Articles XI.203 and XI.205 of the Code of Economic Law. (11) Yet those latter provisions, in so far as they transpose into Belgian law, in respect of performers, Articles 2 and 3 of Directive 2001/29 as well as Articles 3 and 7 to 9 of Directive 2006/115, must be interpreted, so far as possible, in accordance with those directives. (12) Furthermore, the said directives are not concerned by the problem of their applicability ratione temporis in the main proceedings, unlike Directive 2019/790. Thus, clarification on the matter of the correct interpretation of the abovementioned provisions of EU law would, to my mind, be useful, if not indispensable, for the resolution of the dispute pending before the referring court, especially as that issue does not appear to have been raised or discussed in the main proceedings.

28.      As far as the second question is concerned, it is part of the wider question of whether Directive 2019/790 precludes national legislation such as the act at issue in the main proceedings. It can therefore be analysed in the context of the interpretation of the provisions of that directive. I consequently propose to join that analysis to that of the first question.

29.      Thus, I propose considering that, by its two questions, the referring court asks, in essence, whether Article 2(b) and Article 3(2)(a) of Directive 2001/29, Article 3(1)(a), Article 7(1), Article 8(1) and Article 9(1)(a) of Directive 2006/115 as well as Articles 18 to 23 of Directive 2019/790 must be interpreted as precluding the assignment by regulation, in favour of the employer, of the related rights of performers who are statutory agents, for performances carried out in the context of the employment relationship.

 The questions referred for a preliminary ruling as reformulated

30.      By the act at issue in the main proceedings, adopted without the consent of the musicians of the BNO and despite their opposition, the Belgian authorities unilaterally ordered, by regulation, the assignment of all related rights, existing and future, of those musicians in favour of the BNO, for a flat-rate remuneration. That act is thus akin to a compulsory assignment of those rights in favour of the institution that has an interest in exploiting them economically. Moreover, that assignment was decided, in respect of the musicians who were already been members of the BNO when the said act was adopted, retroactively, that is to say, after they had entered into that orchestra’s service. (13) It thus results from an act of the federal government, on which the BNO is also dependent. Consequently, the assignment at issue was decided, as it were, by the government for its own benefit.

31.      The question which arises is therefore whether the relevant provisions of Directives 2001/29, 2006/115 and 2019/790 preclude such a compulsory assignment. I would point out at the outset that the answer is, in my view, in the affirmative, for the reasons set out below.

 Directives 2001/29 and 2006/115

32.      Article 2(b) and Article 3(2)(a) of Directive 2001/29, as well as Article 3(1)(a), Article 7(1), Article 8(1) and Article 9(1)(a) of Directive 2006/115, confer on performers the exclusive right to authorise or prohibit the exploitation of their performances in the form of fixation, reproduction, distribution (including rental and lending) and communication to the public, including making available to the public.

33.      According to settled case-law, the exclusive right to authorise or prohibit is a right preventive in nature, in that any act of exploitation of protected subject matter requires the prior consent of the holder of the right in question. Any use of that subject matter by a third party without such prior consent must be regarded as infringing those rights. (14) Moreover, that protection is not limited to the enjoyment of exclusive rights, but also extends to the exercise of those rights. (15)

34.      It follows that the provisions concerned by Directives 2001/29 and 2006/115 confer on performers the right to oppose actually and effectively the exploitation of their performances without their consent. That right cannot therefore be turned into a mere right to remuneration by means of a compulsory assignment such as that provided for by the act at issue in the main proceedings.

35.      The fact that the musicians of the BNO are employed under the status of public agents is irrelevant here. In using without further clarification the word ‘performers’, which must be interpreted uniformly throughout the European Union, the EU legislature did not make the applicability of the provisions of Directives 2001/29 and 2006/115 subject to any condition concerning the employment situation of the persons concerned. (16) There is therefore no doubt in my mind that those provisions apply to employed performers, including those employed under the status of public agent.

36.      Directives 2001/29 and 2006/115 provide for exceptions and limitations to the exclusive rights of performers. Thus, Article 5(2) and (3) of Directive 2001/29 sets out an exhaustive list of exceptions to the rights protected under that directive, for which Member States are entitled to provide in their legislation. Similarly, Article 10 of Directive 2006/115 draws up a short list of possible exceptions to the rights protected under that directive, to which can be added the exceptions similar to those provided for in the domestic law of each Member State as regards copyright. (17) Moreover, the rights of broadcasting and communication to the public are limited in certain situations by virtue of Article 8(1) and (2) of that directive. In particular, that paragraph 2 introduces a compulsory licence for broadcasting and communication to the public where performances are recorded on a phonogram published for commercial purposes, for an equitable remuneration for rightholders.

37.      Those exceptions and limitations cannot however be used to turn all of the exclusive rights of a category or of a group of performers, by means of compulsory assignment, into a right to remuneration.

38.      The second subparagraph of Article 10(2) of Directive 2006/115 moreover expressly states that compulsory licences may be provided for only to the extent to which they are compatible with the Rome Convention. Although contained in Directive 2006/115, that provision applies not only to the exclusive rights protected under it, but ‘with regard to the protection of performers’ in general, that is to say, also to the rights laid down by Directive 2001/29.

39.      The Rome Convention, to which the abovementioned provision of Directive 2006/115 refers, clearly defines the nature of the rights that parties to that convention are obliged to ensure for performers. Article 7(1) of that convention, which establishes the minimum level of protection required, provides that that protection must include the possibility of ‘preventing’ the exploitation, without those performers’ consent, of their performances in the form of broadcasting or communication to the public, the original fixation and reproduction. They are thus the exclusive and preventive of performers, who must be able to give or withhold their consent for each exploitation of their performances in one of the abovementioned forms.

40.      The Rome Convention qualifies the scope of that principle of the prior consent of performers only in a limited number of situations, referred to in Articles 12, 15 and 19 of that convention, reproduced in Article 8(2), Article 10 and Article 3(6) of Directive 2006/115, respectively. However, none of those provisions allows a compulsory assignment general in nature, such as that contained in the act at issue in the main proceedings, to be ordered. (18)

41.      As regards joint performances, that is to say, performances carried out by several performers, Article 8 of the Rome Convention allows the parties thereto to specify the manner in which the performers will be represented in connection with the exercise of their rights. Arrangements can therefore be made to allow ensembles of performers to give their authorisation in an effective manner to acts of exploitation of their performances. On the other hand, it follows from the travaux préparatoires for the Rome Convention that that provision deals not with the conditions of the exercise of the rights of performers, but only the ways in which they are represented, precisely to avoid it being interpreted as allowing the introduction of a compulsory licence concerning joint performances. (19) The principle of consent thus remains fully applicable here.

42.      The WPPT restates, with some minor adjustments, the provisions of the Rome Convention as regards the exclusive rights of performers. Those rights are characterised therein as ‘exclusive rights to authorise’. Articles 8, 9 and 10 of the WPPT supplement that convention with new rights, namely the right of distribution, the right of rental and the right of making available to the public, respectively.

43.      It follows, in my view, that the provisions of Directives 2001/29 and 2006/115 referred to in point 32 of the present Opinion, read in the light of the relevant provisions of the Rome Convention and of the WPPT, preclude a general assignment of the related rights of a group of performers from being provided for by regulation without those performers’ prior consent.

44.      It is indeed true that, in exceptional situations, the Court has accepted that a presumption of implicit consent of the holders of copyright or of related rights may be provided for by national legislation. (20) In my opinion, however, that case-law is not applicable in this case.

45.      In the first place, the Court has envisaged such implicit consent only in situations of uses of lesser importance. (21) I doubt that that can be transposed as is to a general assignment of the related rights of a group of performers. Moreover, the Court has emphasised that the conditions under which implicit consent may be accepted are strictly defined, in order not to deprive the very principle of prior consent of any effect. (22) In the case of performers concerned by the act at issue in the main proceedings, however, the principle of prior consent is effectively nullified.

46.      In the second place, the Court has emphasised that the rightholder concerned must be able to oppose the envisaged use of the protected subject matter at issue. (23) It is common ground in the main proceedings, however, that the musicians of the BNO have not consented to the terms of the assignment of their rights and oppose the act at issue in the main proceedings. There can therefore be no presumption of consent on their part. Furthermore, in so far as the act at issue in the main proceedings concerns musicians who are already employed, the existence of implicit consent to the assignment of their rights in favour of the BNO remains purely hypothetical. (24)

47.      Last, in the third place, the Court has also emphasised that pursuit of an objective or of a cultural interest cannot justify a derogation not provided for by the EU legislature to the protection that is ensured by acts of EU law in the area of copyright and related rights. (25)

48.      In the interest of clarity, I would point out that, in my opinion, EU law does not preclude performers’ related rights from being assigned to their employer, as is provided for in paragraph 4 of Article XI.205 of the Code of Economic Law, or, in the case of performers employed under the status of public agents, that assignment from being effected by regulation. However, the adoption and the content of such a regulatory act must have the prior consent of those performers or of their duly authorised representatives.

49.      I therefore propose answering the questions referred for a preliminary ruling, as regards Directives 2001/29 and 2006/115, to the effect that Article 2(b) and Article 3(2)(a) of Directive 2001/29, as well as Article 3(1)(a), Article 7(1), Article 8(1) and Article 9(1)(a) of Directive 2006/115, must be interpreted as precluding the assignment by regulation, in favour of the employer, of the related rights of performers who are statutory agents, for performances carried out in the context of the employment relationship, where the adoption and content of the regulatory act at issue do not have the prior consent of those performers or of their duly authorised representatives.

 Directive 2019/790

50.      So far as concerns Directive 2019/790, it is apparent from the request for a preliminary ruling that the referring court is questioning the Court as to the applicability of that directive in the case of the assignment by regulation of the related rights of performers employed under the status of public agents and as to the applicability of the said directive ratione temporis, in view of the date of adoption of the act at issue in the main proceedings. I shall therefore concentrate on those two aspects. The assessment of the material conformity of the national legislation with the relevant provisions of the same directive falls in any event within the jurisdiction of the referring court.

–       Applicability of Directive 2019/790 ratione temporis

51.      As a reminder, by virtue of Article 26 thereof, Directive 2019/790 is to apply in respect of all works and other subject matter that are protected by national law in the field of copyright on or after 7 June 2021. That article specifies, in paragraph 2 thereof, that that directive is to apply without prejudice to any acts concluded and rights acquired before the aforementioned date. The question which arises is thus to what extent the said directive applies to the act at issue in the main proceedings, which entered into force on 4 June 2021.

52.      I note from the outset that the reservation contained in paragraph 2 of Article 26 of Directive 2019/790 applies only to acts concluded and rights acquired in accordance with the law. If, subsequent to the answer that will be given by the Court to the questions referred for a preliminary ruling, the referring court decides to invalidate the act at issue in the main proceedings, the question of the applicability ratione temporis of that directive will become devoid of purpose, since any new act assigning the rights of the musicians of the BNO will have been adopted after 7 June 2021.

53.      Notwithstanding the foregoing, it seems to me necessary to make the following remarks concerning that applicability ratione temporis.

54.      As regards the provisions of Article 10 of Directive 2001/29, drafted in terms substantially identical to Article 26 of Directive 2019/790, the Court has held that their purpose is to avoid the retroactive application of Directive 2001/29 and that they must be interpreted as meaning that that directive does not affect acts of exploitation for exclusive rights before the date of its applicability. (26)

55.      That case-law does not, however, explicitly answer the question of how must the concept of ‘acquired rights’ be interpreted, a concept also contained in Article 26(2) of Directive 2019/790. In my opinion, that concept should not be given too broad an interpretation, so as not to affect the effectiveness of that directive.

56.      The assignment of exclusive rights can have a very broad temporal scope. Thus, the act at issue in the main proceedings provides for the assignment in favour of the BNO of all the related rights that are listed there of the musicians of that orchestra, those currently employed and those who will be employed in the future, including for future performances, and for the entire duration of those rights. To consider all of the said rights as ‘acquired’, within the meaning of Article 26(2) of Directive 2019/790, would have the effect of definitively exempting the assignment of the related rights of the musicians of the BNO from the requirements of that directive, which would then become devoid of purpose in respect of that group of performers.

57.      It is therefore necessary, in my opinion, to interpret Article 26(2) of Directive 2019/790 as referring only to the rights existing on the date that is indicated therein, that is to say, to the rights whose triggering factor took place before that date. As regards the related rights of performers, that triggering factor is, in principle, the performance. While the assignment of exclusive rights can pertain to future rights, it is difficult to regard them as ‘acquired’ by the assignee, in so far as it is not certain that the triggering factor will take place.

58.      Furthermore, and irrespective of the interpretation in abstracto of Article 26 of Directive 2019/790, it should be stated that, in the circumstances of the present case, the act at issue in the main proceedings, as a regulatory act, has a dual nature. On the one hand, it constitutes the act of assignment of the related rights of the musicians of the BNO employed at the time of its adoption. (27) On the other hand, it regulates in an abstract manner the situation of every musician in that orchestra, current or future. As such, that act is part of the domestic Belgian legislation that the Kingdom of Belgium has been obliged to bring into conformity with Directive 2019/790 since 7 June 2021. The Belgian State is under that obligation notwithstanding the role in which it acts, whether it be as legislator or as employer. That Member State cannot, after all, rely on any ‘acquired rights’ in order to thwart the effectiveness of that directive.

59.      Those considerations lead me to the conclusion that Articles 18 to 23 of Directive 2019/790 are applicable to the act at issue in the main proceedings as from 7 June 2021, subject to acts of exploitation carried out and existing rights acquired by the BNO before that date. (28)

–       Applicability of Directive 2019/790 ratione personae

60.      The referring court has doubts as to whether Articles 18 to 23 of Directive 2019/790 apply in the case of an assignment of the related rights of performers that takes place in the context of an employment relationship, specifically an employment under the status of public agent. Those doubts are fuelled by the positions of the Belgian State and of the BNO, that those parties maintain, in essence, in their observations in the present proceedings, which argue that, given their wording and in the light of the relevant recitals of the directive, those provisions are applicable only to rightholders who have concluded contracts licensing or assigning their rights.

61.      As follows from the discussion devoted to the relevant provisions of Directives 2001/29 and 2006/115, except in a limited number of cases, performers must give their consent for any exploitation of their related rights. Where that consent is given for remuneration, there is then a sort of ‘contract of exploitation’ of those rights, in the generic meaning of the term, as that contract can take various forms and names in national legal systems. That does not exclude employment relationships, in which there may also be a contract assigning related rights between the employed performer and his or her employer, whether it be separate from or incorporated into the employment contract.

62.      Directive 2019/790 takes that situation as a given and it is in that broad and generic sense that the word ‘contract’ is used there. Moreover, Articles 18, 19 and 22 of that directive define their scope by referring to the licensing or transfer of exclusive rights. The word ‘contract’, within the meaning of those provisions, must therefore be understood as referring to any licensing of exploitation or transfer of exclusive rights.

63.      Consequently, it is appropriate to regard Articles 18 to 23 of Directive 2019/790 as applying not only in the scenario where there is a contract exploiting exclusive rights in the strict sense, but each time that a performer gives his or her consent to the exploitation of his or her related rights for remuneration.

64.      A different interpretation would deprive Directive 2019/790 of a large part of its effectiveness. Performers such as theatre actors or orchestra musicians frequently find themselves in an employment relationship. While their work consists mainly in giving live performances, their employer may also be interested in exploiting their performances in other ways. Excluding those performers from availing of the provisions of that directive would severely limit its scope and, consequently, its effectiveness.

65.      The conclusion set out in point 63 of the present Opinion is supported by recital 72 of Directive 2019/790, which states that natural persons need the protection provided by that directive ‘to be able to fully benefit from the rights harmonised under Union law’. Given that those rights harmonised under EU law, particularly the related rights of performers, exist independently of the situation of their holders in terms of employment law, however, it must be the same as regards the applicability of the said directive. While that recital refers also to situations in which that need for protection does not exist, particularly certain employment relationships, those situations do not however concern the exploitation of protected subject matter, but only to their end use. That is not the case here, however.

66.      That conclusion applies also to jobs in the public sector, including those governed not by an employment contract, but by a statute. In those situations, too, the performer concerned must give his or her consent to the exploitation by the employer of his or her related rights. Their relationship is therefore akin, in essence, to any other contractual relationship between a holder of exclusive rights and a licensee of exploitation or an assignee of those rights. Directive 2019/790 therefore applies in this case.

67.      The arguments raised in that regard by the BNO and the Kingdom of Belgium, based on the specific nature of jobs in public administration, including of the European Union, are, in my view, incorrect. In the first place, the transfer of any copyright on subject matter that is highly unlikely to constitute works, within the meaning of copyright, to the administration which is their end user and does not exploit them, at least not economically, is not comparable to the transfer of related rights over artistic performances with a view specifically to a commercial exploitation of them. In the second place, where a public agent enters into the service of an administration, he or she may give his or her consent to the transfer of any rights in full knowledge of the rules in force, by signing an undertaking. By contrast, the act at issue in the main proceedings applies to musicians already employed and does not allow them to give or refuse their consent to the envisaged assignment, when in the past such consent was sought from them. In the third place, the transfer of the rights to an administration in the context of the service does not give rise to an additional remuneration and therefore does not trigger the application of Directive 2019/790, contrary to the assignment provided for by the act at issue in the main proceedings. Last, at issue here is not the remuneration of public agents, but the transfer for remuneration of the related rights of performers, a matter for which the European Union is undoubtedly competent.

–       Answer to the questions referred

68.      Articles 18 to 23 of Directive 2019/790 therefore apply, in principle, to a regulation such as the act at issue in the main proceedings, such that it must be in conformity with those provisions. The assessment of that conformity requires interpreting national law and factual findings and, consequently, falls within the jurisdiction of the referring court.

69.      By way of final remark, I would once again like to draw attention to Article 1(2) of Directive 2019/790, by virtue of which it leaves intact and does not affect the rules in force laid down, in particular, by Directives 2001/29 and 2006/115. It follows, inter alia, that observance of the provisions of the former directive, including Articles 18 to 23 thereof, does not replace the obligation to observe the rules fixed by the other two directives, particularly the principle of consent prior to any exploitation of protected subject matter. A unilateral measure without such consent, even one which observes those articles, cannot be regarded as being in conformity with EU copyright law as a whole.

70.      I therefore propose answering the question referred for a preliminary ruling, in respect of Directive 2019/790, to the effect that Articles 18 to 23 thereof must be interpreted as meaning that, subject to acts of exploitation carried out and existing rights acquired before 7 June 2021, they apply to the assignment by regulation, in favour of the employer, of the related rights of performers who are statutory agents, for performances carried out in the context of the employment relationship, such that that regulatory act must be in conformity with those provisions. The said act must also be in conformity with the requirements of Directives 2001/29 and 2006/115, particularly the requirement of prior consent for the assignment of related rights.

 Conclusion

71.      In view of all the foregoing considerations, I propose that the Court answer the questions referred for a preliminary ruling by the Conseil d’État (Council of State, Belgium) in the following manner:

Article 2(b) and Article 3(2)(a) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, as well as Article 3(1)(a), Article 7(1), Article 8(1) and Article 9(1)(a) of Directive 2006/115/EC of the European Parliament and of the Council of 12 December 2006 on rental right and lending right and on certain rights related to copyright in the field of intellectual property

must be interpreted as precluding the assignment by regulation, in favour of the employer, of the rights related to copyright of performers who are statutory agents, for performances carried out in the context of the employment relationship, where the adoption and content of the regulatory act at issue do not have the prior consent of those performers or of their duly authorised representatives.

Articles 18 to 23 of Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC

must be interpreted as meaning that subject to acts of exploitation carried out and existing rights acquired before 7 June 2021, they apply to the assignment by regulation, in favour of the employer, of the related rights of performers who are statutory agents, for performances carried out in the context of the employment relationship, such that that regulatory act must be in conformity with those provisions. The said act must also be in conformity with the provisions of Directives 2001/29 and 2006/115, particularly the requirement of prior consent for the assignment of related rights.

1      Original language: French.

2      Those are more specifically rights referred to as ‘economic’ rights. Personal rights are not covered by EU law and will therefore not be addressed in the present Opinion.

3      The protection of phonogram producers and broadcasting organisations, also instituted by the Rome Convention, is outside the scope of the present case.

4      See, to that effect, judgment of 8 September 2020, Recorded Artists Actors Performers (C‑265/19, EU:C:2020:677, paragraphs 50 and 51).

5      OJ 2000 L 89, p. 6.

6      OJ 2001 L 167, p. 10.

7      OJ 2006 L 376, p. 28.

8      OJ 2019 L 130, p. 92.

9      See, most recently, judgment of 9 March 2023, Registrų centras (C‑354/21, EU:C:2023:184, paragraph 35).

10      See recital 72 of Directive 2019/790.

11      And, according to my reading of the request for a preliminary ruling, the referring court considers that complaint admissible.

12      See, to that effect, inter alia, judgment of 14 November 2019, Spedidam (C‑484/18, EU:C:2019:970, paragraph 30). In the interest of clarity, I would note that Directive 2019/790 had not yet been transposed into Belgian law when the act at issue in the main proceedings was adopted.

13      The word ‘service’ seems to me appropriate here, since the musicians of the BNO are usually employed under the status of public agent.

14      See, inter alia, regarding the related rights of performers, judgment of 14 November 2019, Spedidam, (C‑484/18, EU:C:2019:970, paragraph 38 and the case-law cited).

15      Judgment of 14 November 2019, Spedidam (C‑484/18, EU:C:2019:970, paragraph 37).

16      See, by analogy, judgment of 8 September 2020, Recorded Artists Actors Performers (C‑265/19, EU:C:2020:677, paragraphs 48 and 61).

17      Those exceptions may not be other than those listed in Article 5 of Directive 2001/29. The confused nature of those rules is due to the fact that Article 10 of Directive 2006/115 reproduces verbatim Article 10 of Council Directive 92/100/EEC of 19 November 1992 on rental right and lending right and on certain rights related to copyright in the field of intellectual property (OJ 1992 L 346, p. 61), which predates Directive 2001/29 and which was codified by Directive 2006/115.

18      Only Article 12 of the Rome Convention introduces a sort of compulsory licence for situations where a phonogram published for commercial purposes is used for broadcasting or for communication to the public, and, in that case, the performers concerned have the right to only an equitable remuneration. Article 15 of that convention provides for classic exceptions to the exclusive rights of performers, whereas Article 3(6) of Directive 2006/115, in the context of the possibility offered by Article 19 of the said convention, allows Member States to provide for a presumption of authorisation from performers for the acts covered by that directive once they have consented to the incorporation of their performances in a cinematographic or audiovisual work.

19      See Ficsor, M., Guide to the copyright and related rights treaties administered by WIPO, WIPO, Geneva, 2003, p. 153.

20      See judgments of 16 November 2016, Soulier and Doke (C‑301/15, EU:C:2016:878, paragraph 35), and of 14 November 2019, Spedidam (C‑484/18, EU:C:2019:970, paragraph 40).

21      That is to say, the reproduction and communication to the public in digital format of out-of-print books and the exploitation of the performances contained in old audiovisual works.

22      Judgment of 14 November 2019, Spedidam, C‑484/18, EU:C:2019:970, paragraph 40.

23      See judgments of 16 November 2016, Soulier and Doke (C‑301/15, EU:C:2016:878, paragraph 38), and of 14 November 2019, Spedidam (C‑484/18, EU:C:2019:970, paragraph 43).

24      See, to that effect, judgment of 16 November 2016, Soulier and Doke (C‑301/15, EU:C:2016:878, paragraph 39).

25      See, to that effect, judgment of 16 November 2016, Soulier and Doke (C‑301/15, EU:C:2016:878, paragraph 45).

26      Judgment of 27 June 2013, VG Wort and Others (C‑457/11 to C‑460/11, EU:C:2013:426, paragraphs 28 and 29).

27      That is true, at the very least, as regards musicians employed under the status of public agents. For musicians employed under an employment contract, the last recital of the act at issue in the main proceedings provides that that act will be made applicable to them through amendments to their contracts.

28      Even though, by virtue of Article 27 of that directive, Article 19 thereof is applicable to existing contracts from 7 June 2021 without reservation.