Sunday 23 November 2008

No interim relief for "non-urgent" collecting societies

On 14 November, in Cases T-398/08 R Stowarzyszenie Autorow ZAiKS v Commission Competition, T-401/08 R Saveltajain Tekijanoikeustoimisto Teosto v Commission, T-410/08 R GEMA v Commission Competition; T-411/08 R Artisjus v Commission Competition and T-422/08 R Sacem v Commission the Court of First Instance of the European Communities dismissed an application by several national copyright collecting societies to suspend the effect of a European Commission order pending their appeal against it. The applicants, music-royalty collecting societies from France, Germany, Hungary, Finland and Poland, failed to convince the Court that there existed any urgent need to lift the order before the court rules on their appeal. It was in July that the Commission ordered that songwriters should be allowed to choose which collecting society manages the licensing of their copyright works. Broadcasters may benefit if large collecting societies, such as France's Sacem, have to cut royalty charges in order to compete with smaller agencies. While the Court phrased its decision in terms of lack of urgent need for relief, it also had this to say (in Artisjus -- the cases are available in a variety languages: Artisjus is available in English):
"The applicant for its part has not produced any figures ... to demonstrate in any other way the seriousness of the alleged financial damage by showing that the ‘online’ field represented the great majority of its income. Such detailed figures, which were within the applicant’s power, should already have appeared in the application for interim measures itself. Such an application must be sufficiently detailed in itself to enable the defendant to prepare his observations and the judge hearing the application to rule on it, where necessary, without other supporting information, and the essential elements of fact and law must be apparent from the application for interim measures itself".
This indicates that the burden faced by any IP-based business that seeks to suspend a Commission order relating to its business operations is a substantial one: actual financial damage must be shown. This stacks the odds against the business itself, since figure[based evidence is always historical while the damage which the business seeks to prevent, through suspending the order, is going to be felt (assuming it exists) in the future. Where the market is a dynamic one that is subject to rapid and sometimes unpredictable changes, the evidential burden will presumably be rarely met, if at all.


goldenrail said...

Pardon me for the ignorance, are musicians in Europe able to choose collecting societies from outside their own countries to represent them across Europe?

Jeremy said...

Under EU law I don't think collecting societies would be able to discriminate against applicants for membership from outside their own countries -- can someone correct meif I'm wrong?