Keywords
Summary

Keywords

++++

1 . Competition - Agreements, decisions and concerted practices - Restriction of competition - Reciprocal representation agreements

between national copyright management societies - Lawfulness - Exclusive rights clause - Not lawful

( EEC Treaty, Art . 85(1 ) )

2 . Competition - Agreements, decisions and concerted practices - Concerted practice - Parallel behaviour - Presumption of concerted action - Limits - Refusal by national copyright management societies to grant a user established in another Member State direct access to their repertoire - Assessment by the national court

( EEC Treaty, Arts 85(1 ) and 177 )

3 . Competition - Dominant position - Abuse - Unfair trading conditions - Royalties applied by one copyright management society appreciably higher than those charged in other Member States - Possible justification

( EEC Treaty, Art . 86 )

Summary

1 . Reciprocal representation contracts between national copyright management societies concerned with musical works whereby the societies give each other the right to grant, within the territory for which they are responsible, the requisite authorizations for any public performance of copyrighted musical works of members of other societies and to subject those authorizations to certain conditions, in conformity with the laws applicable in the territory in question, where those contracts have the dual purpose of making all protected musical works, whatever their origin, subject to the same conditions for all users in the same Member State, in accordance with the prohibition of discrimination laid down in the international conventions on copyright, and to enable copyright management societies to rely, for the protection of their repertoires in another Member State, on the organization established by the copyright management society operating there, without being obliged to add to that organization their own network of contracts with users and their own local monitoring arrangements, are not in themselves restrictive of competition in such a way as to be caught by Article 85(1 ) of the Treaty .

The position might be different if the contracts established exclusive rights whereby the copyright management societies undertook not to allow direct access to their repertoires by users of recorded music established abroad .

2 . Article 85 of the EEC Treaty must be interpreted as prohibiting any concerted practice by national copyright management societies of the Member States having as its object or effect the refusal by each society to grant direct access to its repertoire to users established in another Member State .

It is for the national courts, in accordance with the division of powers under Article 177 of the Treaty, to determine whether any concerted action by such management societies has in fact taken place .

In so doing those courts must bear in mind that mere parallel behaviour may amount to strong evidence of a concerted practice if it leads to conditions of competition which do not correspond to the normal conditions of competition but that concerted action of that kind cannot be presumed where the parallel behaviour can be accounted for by reasons other than the existence of concerted action . In the case of the practices followed by copyright management societies, such a reason might lie in the fact that if direct access were granted to their repertoires, those societies would be obliged to organize their own management and monitoring system in another country .

3 . A national copyright management society holding a dominant position in a substantial part of the common market imposes unfair trading conditions where the royalties which it charges to discotheques are appreciably higher than those charged in other Member States, the rates being compared on a consistent basis . That would not be the case if the copyright management society in question were able to justify such a difference by reference to objective and relevant dissimilarities between copyright management in the Member State concerned and copyright management in the other Member States .