The matter at hand
According to a Belgian Royal Decree, the musicians of the Belgian National Orchestra (BNO) mandated the assignment of their performers’ rights to the BNO in exchange for remuneration. By an action brought before the Consoleil d’État (the referring court) the musicians sought annulment of this regulatory act, claiming, inter alia, that its provisions infringed Articles 18 to 23 of Directive 2019/790Directive (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 (Text with EEA relevance.).
The referring court, decided to stay the proceedings and refer questions to the ECJ for a preliminary ruling. It sought clarification on whether Article 18 to 23 of Directive 2019/790Directive (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 (Text with EEA relevance.) preclude the assignment, by means of a regulatory act, of the related rights of statutory employees in performances carried out within the scope of their employment.
The Judgment of the ECJ
In its judgment, the ECJ reiterates that performers’ rights are exclusive rights and must be given a broad scope of protection. The protection must be understood as meaning that it is not limited to the enjoyment of the rights guaranteed by those provisions, but also extends to the exercise of those rights (paragraph 105).
Moreover, the ECJ emphasized that performers’ rights are preventive in nature and that any use of their performances requires prior consent. This principle is subject only to the exceptions and limitations laid down in Article 5 of Directive 2001/29Directive 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 and Article 10 of Directive 2006/115Directive 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 (paragraph 106).
The ECJ therefore considers, with reference to Kwantum/Vitra (C‑227/23), “that those provisions preclude, in the absence of prior consent from the rightholders, the assignment, by means of a regulatory act, of the exclusive rights referred to in those directives, unless such an assignment is covered by one of the exceptions or limitations provided for by those directives, which are exhaustive in nature” (paragraph 107). Neither Directive 2001/29Directive 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 nor Directive 2006/115Directive 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 provides an exception allowing the assignment of all rights relating to the performance and exploitation of performers’ works without their prior consent.
Regarding the form of consent, the ECJ reiterates that Directives 2001/29 and 2006/115 do not specify how that consent is to be given (paragraph 122). It is up to the Member States to establish the methods for granting that consent, this could be obtained in the context of individual or collective negotiations, but such methods must always be strictly defined, “in order not to deprive the very principle of prior consent of any effect” (paragraph 124).
Given the above, the ECJ considers there is no need to examine whether Articles 18 to 23 of Directive 2019/790Directive (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 (Text with EEA relevance.), which concern the fair remuneration, must be interpreted as also precluding such an assignment.