On 25 May 2023 the Advocate General of the EU Court of Justice delivered its opinion (available here) in the interesting case C‑10/22, Liberi editori e autori (LEA) v Jamendo SA following a request for preliminary ruling related to the EU Copyright and related Rights Collective Management System, and in particular the right of an Independent Management Entity – IME – (as defined by the Barnier Directive) to manage the rights that are not entrusted to any other “traditional” collective management organization, such as, for example, the italian “SIAE”.
Italy no longer has a monopoly in copyright intermediation, as it can be carried out by various collective management organizations (“CMO”) and the question is about whether such Independent Management Entities are excluded by the Italian Law from the management. The Italian government have traditionally justified the possible exclusion based on the specific nature of traditional collective management organisations, their not-for-profit nature, and obligations towards rights holders.
However, the Advocate General, in the present case, argues that many of these obligations also apply to independent management entities. Therefore, the exclusion of independent management entities from copyright intermediation would be not justified under Article 56 TFEU.
The Advocate General’s opinion indicates that possible limitations imposed by national law, reserving copyright management activities exclusively to collective management organizations, would be in detriment of independent management entities like, for example, the defendant of the referred Italian case, Jamendo, which is established in another Member State (Luxembourg).
The Advocate General argued that Directive 2014/26 on collective management (so called, “Barnier Directive”) does not, by itself, resolve the issue, as it does not preclude national laws limiting the activity of management or the territorial scope of licenses issued by collective management organisations. However, the Advocate General considered the services provided by Jamendo to likely fall within the scope of Directive 2000/31 on electronic commerce, which distinguishes between national service providers and those from other Member States, prohibiting restrictions on the latter. Consequently, the AG opined that possible Italian restriction would conflict with Article 3(2) of Directive 2000/31.
If Jamendo’s activities were not covered by Directive 2000/31, the AG suggested examining Directive 2006/123 on services in the internal market to see if it applied instead. The AG highlighted that the internet has changed traditional categories of service provision, allowing for the lasting exercise of an activity without a permanent establishment in the Member State where the activity is carried out.
In conclusion, the Advocate General proposes that the Court answer to the question referred for a preliminary ruling by stating that legislation reserving copyright management activities to traditional collective management organisations (non for profit and controlled by Right holders) , to the exclusion of independent management entities (for profit, privately hold and non controlled by Right holders) established in other Member States, would be incompatible with Directive 2000/31/EC and Directive 2006/123/EC.
We will now see if the European Court of Justice will agree, or not, with the Advocate General opinion, in a long awaited judgement which could change the European collective management landscape, with a particular impact on music right management.