16.6.2012

Official Journal of the European Union

C 174/8

(Case C-510/10) (<span class="super">1</span>)

(Approximation of laws - Copyright and related rights - Directive 2001/29/EC - Article 5(2)(d) - Right to communicate works to the public - Exception to the reproduction right - Ephemeral recordings of works made by broadcasting organisations by means of their own facilities and for their own broadcasts - Recording made with the facilities of a third party - Obligation of the broadcasting organisation to pay compensation for any adverse effects of the actions and omissions of the third party)

2012/C 174/10

Language of the case: Danish

Referring court

Parties to the main proceedings

Applicant: DR, TV2 Danmark A/S

Defendant: NCB — Nordisk Copyright Bureau

Re:

Reference for a preliminary ruling — Østre Landsret — Interpretation of Article 5(2)(d) 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 (OJ 2001 L 167, p. 10) — Conditions for benefiting from an exception to the reproduction right — Ephemeral recordings of works made by broadcasting organisations by means of their own facilities and for their own broadcasts — Broadcasting organisation which has commissioned recordings from independent external television production companies for the purpose of broadcasting them in the course of its own transmissions

Operative part of the judgment

The expression ‘by means of their own facilities’ in Article 5(2)(d) 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 must be given an independent and uniform interpretation within the framework of European Union law.

Article 5(2)(d) of Directive 2001/29, read in the light of recital 41 in the preamble to that directive, must be interpreted as meaning that a broadcasting organisation’s own facilities include the facilities of any third party acting on behalf of or under the responsibility of that organisation.

For the purposes of ascertaining whether a recording made by a broadcasting organisation, for its own broadcasts, with the facilities of a third party, is covered by the exception laid down in Article 5(2)(d) of Directive 2001/29 in respect of ephemeral recordings, it is for the national court to assess whether, in the circumstances of the dispute in the main proceedings, that party may be regarded as acting specifically ‘on behalf of’ the broadcasting organisation or, at the very least, ‘under the responsibility’ of that organisation. As regards whether that party may be regarded as acting ‘under the responsibility’ of the broadcasting organisation, it is essential that, vis-à-vis other persons, among others the authors who may be harmed by an unlawful recording of their works, the broadcasting organisation is required to pay compensation for any adverse effects of the acts and omissions of the third party, such as a legally independent external television production company, connected with the recording in question, as if the broadcasting organisation had itself carried out those acts and made those omissions.

(<span class="super">1</span>) OJ C 346, 18.12.2010.