• Judgment of the Court of 9 February 2012, C-277/10, M. Luksan

The applicant in the main proceedings, Mr Luksan, is the scriptwriter and principal director of a documentary film entitled ‘Fotos von der Front’ (‘Photos from the Front’), which concerns German war photography during the Second World War. It is undisputed that this documentary film, which takes a critical view of the ambivalence of war photography, constitutes a cinematographic work, protected as an original work on that basis. The defendant in the main proceedings, Mr van der Let, produces cinematographic and other audiovisual works commercially. In March 2008 the parties concluded a ‘directing and authorship agreement’ (audiovisual production contract) stating that Mr Luksan was the scriptwriter and principal director of the film in question and that Mr van der Let would produce and exploit it. Under that contract, Mr Luksan assigned to Mr van der Let all copyright and/or related rights held by him in the film. However, that assignment expressly excluded certain methods of exploitation, namely making available to the public on digital networks and broadcast by closed circuit television and by pay TV, that is to say (encrypted) broadcasting to closed circles of users in return for separate payment. Also, the contract contained no express provision concerning statutory rights to remuneration, such as the remuneration referred to in Paragraph 42b of the UrhG for reproductions made on recording material (‘Leerkassettenvergütung’, literally ‘blank cassette remuneration’). The dispute in the main proceedings arose because the producer, Mr van der Let, made the film in question available on the internet and assigned the rights for this purpose to Movieeurope.com. The film could thus be downloaded from that website by means of video on demand. The producer also made the trailer for the film available on the internet, through YouTube, and assigned the pay TV rights to Scandinavia TV. In those circumstances, the director, Mr Luksan, brought an action against the producer, Mr van der Let, before the Handelsgericht Wien (Commercial Court, Vienna).

The national court asks, in essence, whether Articles 1 and 2 of Directive 93/83, and Articles 2 and 3 of Directive 2001/29 in conjunction with Articles 2 and 3 of Directive 2006/115 and with Article 2 of Directive 2006/116, must be interpreted as meaning that rights to exploit a cinematographic work such as those at issue in the main proceedings (satellite broadcasting right, reproduction right and any other right of communication to the public through the making available to the public) vest by operation of law, directly and originally, in the principal director, in his capacity as author of that work. It asks whether, consequently, the abovementioned provisions preclude national legislation, which allocates the rights in question by operation of law exclusively to the producer of the work. Also, it asks whether European Union law may be interpreted as allowing the Member States the option of laying down such a presumption of transfer also as regards rights to exploit a cinematographic work such as those at issue in the main proceedings (satellite broadcasting right, reproduction right and any other right of communication to the public through the making available to the public) and, if so, subject to what conditions. Furthermore, it asks whether the right to equitable remuneration, such as the fair compensation provided for in Article 5(2)(b) of Directive 2001/29 under the ‘private copying’ exception, vests by operation of law, directly and originally, in the principal director, in his capacity as author or co-author of the cinematographic work. Finally, the national court asks, in essence, whether European Union law must be interpreted as allowing the Member States the option of laying down a presumption of transfer, in favour of the producer of a cinematographic work, of the remuneration rights vesting in the principal director of that work.

The Court concluded that articles 1 and 2 of Council Directive 93/83/EEC of 27 September 1993 on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission, and 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 in conjunction with Articles 2 and 3 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 and with Article 2 of Directive 2006/116/EC of the European Parliament and of the Council of 12 December 2006 on the term of protection of copyright and certain related rights, must be interpreted as meaning that rights to exploit a cinematographic work such as those at issue in the main proceedings (reproduction right, satellite broadcasting right and any other right of communication to the public through the making available to the public) vest by operation of law, directly and originally, in the principal director. Consequently, those provisions must be interpreted as precluding national legislation which allocates those exploitation rights by operation of law exclusively to the producer of the work in question. Furthermore, the Court concluded that European Union law must be interpreted as allowing the Member States the option of laying down a presumption of transfer, in favour of the producer of a cinematographic work, of rights to exploit the cinematographic work such as those at issue in the main proceedings (satellite broadcasting right, reproduction right and any other right of communication to the public through the making available to the public), provided that such a presumption is not an irrebuttable one precluding the principal director of that work from agreeing otherwise. Also, according to the Court, European Union law must be interpreted as meaning that, in his capacity as author of a cinematographic work, the principal director thereof must be entitled, by operation of law, directly and originally, to the right to the fair compensation provided for in Article 5(2)(b) of Directive 2001/29 under the ‘private copying’ exception. Finally, the Court ruled that European Union law must be interpreted as not allowing the Member States the option of laying down a presumption of transfer, in favour of the producer of a cinematographic work, of the right to fair compensation vesting in the principal director of that work, whether that presumption is couched in irrebuttable terms or may be departed from.