Recorded Artists Actors Performers Ltd v Phonographic Performance (Ireland) Ltd

Factual and Procedural Background

These proceedings concern an ongoing dispute regarding the distribution of licence fees payable for the secondary use of recorded music, such as public playing or broadcasting. The Plaintiff, Company A, instituted two sets of proceedings against the Defendant, Company B, both addressing the sharing of licence fees between copyright owners (producers) and performers fixed in sound recordings.

The first set of proceedings focused on the criteria under domestic law for determining which performers qualify to share in the licence fees, with Company A alleging non-compliance with a European Directive on copyright-related rights.

The second set, which is the subject of this judgment, concerns the statutory functions of organisations representing producers and performers, specifically which organisation is responsible for calculating licence fees payable to individual performers. Company A contends that this function lies with it as the collective management organisation for performers, requiring Company B to pay a lump sum to Company A for distribution to performers. A related issue is whether Company A is entitled to collect on behalf of all performers within a class or only those who have assigned that right to it.

By order of the High Court dated 30 April 2018, preliminary issues in both sets of proceedings were directed for trial. The trial occurred over four days in November 2018 before Judge Simons, who delivers this judgment.

Legal Issues Presented

1. Whether the statutory obligation to determine payments of equitable remuneration to individual performers lies with Company A (the collective management organisation for performers) or Company B (the licensing body representing producers).
2. Whether, under section 281 of the Copyright Act 2000, Company A is entitled to receive all remuneration payable by Company B to performers arising from public playing, broadcasting, or cable transmission of recordings in the State.

Arguments of the Parties

Company A's Arguments

• Company A asserts it has the statutory role of calculating payments to individual performers as the collective management organisation representing performers.
• It contends that registration as a licensing body under sections 280 and 281 confers a right to act on behalf of the entire class of performers within the registered categories, entitling it to collect all remuneration payable by Company B to performers.
• Company A relies on the Collective Rights Management Directive 2014/26/EU (CRM Directive) and related domestic regulations to support its position that performers have the right to choose their collective management organisation and that Company A acts in the best interests of performers.
• It argues that denying performers the right to have their own collective management organisation represent them would contravene core principles of the CRM Directive and impose unjustified obligations on performers.
• Company A suggests that Company B's position usurps the role of performers’ collective management organisation and is contrary to competition law principles.

Company B's Arguments

• Company B contends that the statutory obligation to determine payments to performers rests with it as the licensing body representing producers, not with Company A.
• It disputes that registration under section 280 is necessary or relevant for the collection of equitable remuneration under section 208.
• Company B accepts that Company A has the entitlement to negotiate on behalf of its members and to receive sums assigned to it but denies that Company A is entitled to receive all remuneration payable to performers or to calculate individual payments.
• It submits that the role of calculating payments is a mechanical function that lies with the producer or its representative, not with the collecting society.
• Company B emphasizes the distinction between licence fees payable by users and equitable remuneration payable by producers to performers, arguing that these are governed by separate statutory schemes.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Commission v. Ireland, Case C-213/98, EU:C:1999:496	Delay in implementing Directive 92/100/EEC and related copyright obligations	Referenced to explain Ireland’s statutory background and compliance with European directives on copyright-related rights.
Carrickdale Hotel Ltd. v. Controller of Industrial and Commercial Property (High Court 2002 No. 350 SP)	Procedural work-around for statutory determinations	Used as analogy to confirm that disputes may be referred to the Controller for determination on behalf of all similarly situated performers.
O'Neill v. Minister for Agriculture and Food [1998] 1 I.R. 539	Requirement of express statutory language to confer exclusive rights or licences	Applied to reject Company A’s argument that registration confers an exclusive right to collect remuneration on behalf of all performers.
Phonographic Performance (Ireland) Ltd. v. Controller of Commercial and Industrial Property Ltd. [1996] 2 I.R. 560	Distinction between remuneration and licence fees under copyright law	Used to support the argument that remuneration under section 208 differs from licence fees under section 38, impacting the necessity of registration.

Court's Reasoning and Analysis

The Court began by examining the legislative framework, particularly the Copyright and Related Rights Act 2000 and relevant European Directives, which establish a two-step process for equitable remuneration: (1) payment of a single licence fee by users to a licensing body representing producers, and (2) distribution of that remuneration between producers and performers.

The Court identified distinct functions related to equitable remuneration: collection, negotiation, determination, and calculation of payments. It clarified that:

• Collection of remuneration by a collecting society (such as Company A) requires an actual assignment of rights by individual performers.
• Negotiation of distribution schemes is a function of the collecting society, consistent with section 208(4) and the Collective Rights Management Directive.
• The legal authority to determine the amount payable to individual performers lies exclusively with the Controller, who resolves disputes in the absence of agreement.
• The mechanical calculation of payments to individual performers, once a distribution scheme is agreed or determined, is the responsibility of the producer or its representative, not the collecting society.

Regarding the second issue, the Court rejected Company A’s contention that registration as a licensing body under sections 280 and 281 confers a presumptive or exclusive right to act on behalf of all performers within a class. The Court reasoned that:

• The statutory language does not support an exclusive licence or presumptive assignment of rights to the collecting society for all performers.
• The registration scheme is administrative, requiring minimal criteria and providing a public register to inform performers of representative bodies, not to grant exclusive authority.
• The certificate of registration creates a rebuttable presumption that the licensing body has the right to act on behalf of those it claims to represent or who have assigned rights to it, but does not dispense with the need for actual assignment or licensing by individual performers.
• The analogy of trade unions was used to illustrate that registration authorizes availability to represent a class but does not equate to actual representation without consent.

The Court also addressed Company A’s reliance on the CRM Directive, concluding that it is procedural rather than substantive and does not mandate statutory authorisation to act on behalf of performers absent assignment or licence. The Directive does not alter the substantive copyright framework established by domestic law.

Finally, the Court noted Company A’s paradoxical position of minimizing its statutory role to argue usurpation by Company B, which undermines its arguments under competition law.

Holding and Implications

The Court’s final decision is as follows:

1. The statutory obligation to determine payments of equitable remuneration to individual performers does not reside with Company A but with the Controller and the producer or its representative. Company A, as a collecting society, is entitled to negotiate and collect remuneration only where rights have been assigned to it, but it does not have authority to calculate or determine individual payments.

2. Registration as a licensing body under sections 280 and 281 does not confer a presumptive or exclusive right on Company A to act on behalf of all performers within the registered classes without actual assignment or licensing by individual performers.

The direct effect of this decision is to clarify the statutory roles and limit Company A’s authority to those performers who have assigned rights to it. No broader precedent altering the substantive law was established. The Court will hear submissions on the precise form of order to be made on these preliminary issues.