Judgment of the Court of Justice of 17 October 2024, Sony (C-159/23). Facts The litigation pits Sony Computer Entertainment Europe Ltd (“Sony”), distributor of the PlayStation Portable (PSP) console and its games, against Datel Design and Development Ltd (“Datel”), manufacturer of accessories and complementary programs such as Action Replay PSP and Tilt FX. Datel's programs ran alongside Sony's and allowed altering variables temporarily stored in the console's memory, activating unforeseen functions such as removing speed limitations in the game "MotorStorm: Arctic Edge". Sony argued that these modifications constituted an unauthorized “transformation” of its programs, within the meaning of Article 4.1.b) of Directive 2009/24/EC, infringing its exclusive right of transformation. The Bundesgerichtshof (German Federal Supreme Court for Civil and Criminal Matters) referred two preliminary questions to the CJEU: (i) whether the content of the variables modified during the execution of the program is protected by copyright and (ii) whether such alteration can be considered a transformation within the meaning of the Directive. Rulings The CJEU delimits the scope of legal protection for computer programs in accordance with Articles 1 and 4 of Directive 2009/24/EC, specifying that only the forms of expression of the program are protected. Remember that article 1.2 excludes from protection ideas, principles and methods of operation. Therefore, copyright protects the source code and the object code, but not the functional elements or the execution data. The CJ cites the WIPO Treaty and the TRIPS Agreement, which also limit protection to expressions, not to ideas or technical processes. In this context, the CJEU considers that the content of variables temporarily stored in memory does not form part of the expression form of the computer program. Such variables are transient states that do not reproduce or transform the protected code. The CJEU also emphasizes that the purpose of the Directive is to protect the intellectual creation of the program, but without granting monopolies over its operation, so as not to hinder competition or technical progress. Consequently, the CJE concludes that the modification of variables during execution does not constitute a transformation of the program nor infringe copyright, provided that such modifications do not allow the program to be reproduced or performed again. Commentary The CJEU ruling clarifies a key aspect of EU law: copyright on software protects the code as a creative expression, but not the functional behavior of the program during its use. The ruling follows the line of previous decisions such as SAS Institute (C-406/10) and Bezpečnostní softwarová asociace (C-393/09), which already limited protection to the literal expression of the code. With this, the CJEU reaffirms the distinction between protected expression and free functionality, the basis of the balance between intellectual property and innovation. From a practical point of view, the ruling has two main effects. First, it forces development companies to strengthen their technological protection measures or license agreements, since copyright does not cover functional modifications in the execution of the software. Second, it offers legal security to developers of auxiliary programs, provided they do not modify the code of the protected program. In short, this ruling consolidates a uniform criterion in the EU: Only forms of expression - source code and object code - are protected by copyright, while execution states and dynamic variables remain outside the protected scope. Ana Sanz, Associate Partner in the Legal area.

Judgment of the Court of Justice of 21 March 2024, Jamendo (C-10/22). Facts The judgment stems from the litigation between Liberi editori e autori (“LEA”) and Jamendo, in relation to the intermediation activity that Jamendo is carrying out in matters of copyright in Italy, allowing authors and rights holders to authorize the use of their musical works, especially in digital and commercial environments. LEA is a collective management entity that is taking action against Jamendo, an independent management operator (“OGI”) based in Luxembourg that has been operating in Italy since 2004. The dispute arises because, according to Italian regulations, the collective management of copyright was, in practice, reserved for entities authorized at the national level, which prevented operators established in other Member States from providing such services in Italy. LEA argued that Jamendo could not legally operate in Italian territory. Given the doubts about the compatibility of this national legislation with EU law, the Tribunale ordinaria di Roma referred a preliminary question to the Court of Justice of the European Union (CJEU), focusing on the interpretation of Article 56 TFEU (free provision of services) and Directive 2014/26/EU on collective management of copyright and related rights. Rulings The Court of Justice of the European Union first analyzes whether Directive 2014/26 is the appropriate rule to apply in this case and concludes that, although Article 2(4) extends the application of certain provisions of that Directive to IGOs, it cannot be interpreted as obliging Member States to ensure that rights holders have the right to authorise an IGO. The Court then analyzes Jamendo's activity in light of Article 56 of the Treaty on the Functioning of the European Union (TFEU), which prohibits Member States from adopting measures that make it impossible, impede or obstruct the free provision of services by operators established in another Member State. The Court concludes that the activity of independent management operators constitutes a provision of services within the meaning of Article 56 TFEU, and therefore the national legislation governing their access to the market must respect the free provision of services. In this respect, by not considering less burdensome alternatives and opting for such a broad restriction, the Italian regulations violate Article 56 TFEU, as they impose a disproportionate limitation on the free provision of services. Thus, the Court makes it clear that Italy cannot reserve copyright intermediation solely to authorized national entities when this poses an unjustified obstacle to operators from other Member States. Commentary The Court of Justice's ruling is part of a consolidated line of jurisprudence that affirms the primacy of the fundamental freedoms of the internal market over national regulations that, in the field of intellectual property, generate exclusionary or protectionist effects. The Court recalls that the collective management of copyright, even when serving legitimate purposes of protecting rights holders, constitutes an economic activity subject to the requirements of Article 56 TFEU. From this perspective, the ruling is particularly relevant in defining the scope of Directive 2014/26/EU, clarifying that it does not impose on Member States the obligation to guarantee rights holders the possibility of authorizing independent management operators, but neither does it legitimize national restrictions that prevent such operators from accessing the market. In this way, the Court avoids an extensive interpretation of the Directive that could justify regulatory closures incompatible with Union law. Furthermore, the ruling has a clear practical application in the context of the digital and cross-border exploitation of protected works, where the existence of national barriers hinders the efficient granting of licenses. By reinforcing the principle of free provision of services, the CJEU fosters a more competitive and flexible environment, to the benefit of both rights holders and users. In short, the Court's ruling contributes to the harmonization of the European collective management market, while obliging Member States to review their regulatory frameworks to ensure that the requirements imposed on operators are truly proportionate and non-discriminatory, thus guaranteeing the balance between the protection of copyright and the effective functioning of the internal market. Mabel Klimt, Managing Partner of ELZABURU.

In international sporting competitions, music is an essential part of the spectacle. In certain disciplines (such as figure skating or rhythmic gymnastics, among others), the musical choice not only conditions the choreography and the performance, but also activates a complex set of intellectual property rights. In public debate, this reality is often simplified by talking about "the rights of a song" as if it were a single authorization. However, from a legal point of view, the use of music in a globally broadcast event involves different layers of rights, owners, and acts of exploitation. Understanding this structure is key to avoiding legal, economic, and reputational risks. Musical composition and phonogram: two distinct rights When a song is incorporated into a sports routine, at least two distinct legal categories are involved. Copyright on the work The musical work (the composition and, where applicable, the lyrics) is protected by copyright. These rights belong to the creators or those who represent them contractually. The protection applies to the intellectual creation itself, regardless of the specific version used. Related rights over the recording (master) The specific recording heard on the track constitutes a phonogram. It is subject to related rights that may belong to the phonographic producer (if there is one) and to the artists, performers or interpreters. The “work” is not the same as the “master” that we usually hear, and that difference is crucial. The different acts of exploitation in sports entertainment The use of music in a sporting event is not limited to the song “playing” in the venue. It is necessary to analyze the different legal acts that occur. Public communication before the audience present. The music played in the pavilion constitutes an act of public communication. This use is usually arranged through specific or general licenses with the corresponding management entities, which in certain cases are managed by the event organizer. Audiovisual recording and exploitation In contemporary sport, the performance is recorded and broadcast through multiple channels: television, streaming, social media and on-demand platforms. From an intellectual property perspective, this implies: Reproduction (fixing the music in an audiovisual recording). Public communication. Interactive availability. In practice, this is articulated through “synchronization” licenses (a contractual term) and, when using a commercial recording, authorizations to use the master. Therefore, what may be sufficient in a national championship may prove insufficient in an international competition. The change is not due to a regulatory variation, but to the territorial scope and the multiplicity of exploitation windows. Adaptations, mixtures and moral rights In many sports routines, the music is not used in its original, complete version. It is common to perform cuts, medleys, or rearrangements. From a legal point of view, when such modifications exceed a sufficient creative threshold to be legally classified as transformations (arrangements) of the work. It wouldn't be enough to "have permission for it to play". Specific authorization from the copyright holder is required. In addition, the moral right of integrity may come into play, which allows the author to oppose alterations that affect their creation. The result is a paradox: the more iconic the music, the more likely the clearance will be a puzzle of headlines, territories, and windows. Hence, federations and organizers promote declarations and pre-authorizations: a risk management that turns the athlete into a manager of musical content with international reach. Sports entertainment is a global audiovisual product. And music is not a license, but several: work, master and audiovisual exploitation. A single flaw in one component is enough to force program changes, generate reputational conflicts, or open the door to financial claims. What consequences can there be to competing without the proper licenses? Using music without the appropriate licenses or permits can lead to financial claims both nationally and internationally. These claims may come directly from the rights holders or from collecting societies if the rights have not been properly licensed. The possible consequences will depend on the type of right infringed, the seriousness of the infringement, and whether there is a recurrence. In some cases an economic agreement can be reached; in others, if an infringement is deemed to have occurred, a judge will determine responsibility and any potential compensation. As for responsibility, it does not fall exclusively on the athlete. Sports federations and event organizers may also be involved. However, the specific distribution and allocation of that responsibility will depend on the contractual reality and the risk management on the part of federations and organizers. In practice, it is common for federations to contractually transfer to the athlete the burden of ensuring that the music used complies with intellectual property requirements. Music generated by artificial intelligence: an evolving scenario The use of music generated by artificial intelligence currently raises numerous questions from the point of view of intellectual property and is a field in regulatory evolution. The legal analysis will depend on several factors, including: The way in which the AI ​​tool was trained. The degree of human intervention in the creative process. The instructions or prompts used. The licenses and conditions associated with the tool used. Furthermore, there are debates surrounding the possible existence of copyright on this type of creation, potential infringements arising from the training data used by the system, and the distribution of responsibilities between the technology provider and the end user. In this context, rather than a single answer, what exists today are different legal approaches that will depend on how the musical creation has specifically developed. Frequently asked questions about copyright in sports competitions: Is a license sufficient for music to be played in the venue? Not necessarily. Public communication in the pavilion does not automatically cover recording, retransmission or making available on digital platforms. Do I need authorization to...Read more

Judgment of the Court of Justice of 20 June 2024, GEMA (C-135/23). Facts The case originates from a dispute between the collective management society GEMA and GL, a company that operates a residential building in Germany. GL installed televisions equipped with indoor antennas in several of the apartments, allowing them to receive signals and broadcast transmissions, including music, to the tenants. GEMA considered that this making available by GL constituted a communication to the public of protected works, in contravention of the exclusive right of communication to the public provided for in Directive 2001/29/EC. The referring German court —Amtsgericht Potsdam— raised a preliminary question before the Court of Justice of the European Union for the interpretation of the concept of communication to the public in this case. Rulings The Court of Justice of the European Union interprets Article 3(1) of Directive 2001/29/EC and establishes the following criteria: The concept of “communication to the public” is not exhausted by the mere making available of technical facilities (such as televisions with antennas) if there is no additional act that effectively makes protected works available to a public different from the one originally intended. The profit motive of making the devices available, although relevant, does not in itself determine the existence of communication to the public in the European sense; the decisive factor is whether an act occurs that transfers the protected works to a new public beyond the usual private reception. It is for the referring court to determine, in accordance with the specific facts and applicable national regulations, whether GL's conduct constitutes an act of communication to the public in accordance with European criteria. The Court notes that assessing whether communication to the public exists requires a joint factual and legal examination, taking into account the existence of a new public and the effective control of making the information available. Commentary This judgment contributes to the Court's consolidated case law on the concept of "communication to the public" in the field of intellectual property, developed in a long series of pronouncements that seek to balance the protection of authors' rights with legal certainty and technological neutrality. The specific novelty of case C 135/23 lies in transferring to the context of rented housing criteria previously applied to other environments (such as hotel establishments or public places), clarifying that it is not enough to make available technical equipment that can receive emissions: it is necessary to determine whether there is effectively making protected works available to a “new public” different from the original public of the transmission. This line of interpretation seeks to avoid a disproportionate extension of the exclusive right of communication to the public that could encompass activities of a purely technical nature. Furthermore, the ruling underlines the importance of the new public criterion and technological neutrality: the mere technology used (televisions with an indoor antenna) cannot, by itself, generate a new act of communication if there is no effective making of works available to the public. In this way, the Court reinforces a functional approach that requires a real connection with the exercise of the exclusive rights provided for in Directive 2001/29/EC, avoiding formalistic interpretations that would have broad restrictive repercussions on legitimate activities of owners and tenants. In conclusion, the CJEU precisely defines the elements that constitute the concept of communication to the public, offering a clear guideline for national courts when faced with similar cases, and ensuring a balanced application of EU copyright law. Inés de Casas, Senior Associate, Legal Area

Every April 23rd we celebrate World Book and Copyright Day, a date set by UNESCO to highlight the role of books as a vehicle for cultural transmission between generations. Its origin comes from the symbolic date of April 23, 1616, the day on which Miguel de Cervantes was buried, and Inca Garcilaso de la Vega and William Shakespeare died. Beyond the celebration, this day is an opportunity to reflect on something that often goes unnoticed: what lies behind a book from a legal point of view and how a work is truly protected. Copyright in a literary work Copyright recognizes, to whoever creates a work, a series of rights over it from the very moment of its creation. In other words, you don't need to register anything for that protection to exist: it's enough to have written the work. From there, two types of rights come into play: Moral rights, which are closely linked to the person of the author. These include, for example, the right to be recognized as the author of the work, the right to the integrity and disclosure of the work. They are non-waivable and, in some cases, have no time limit. Economic or exploitation rights, which are those that allow authorizing or preventing the work from being reproduced, distributed or transformed. These do have a limited duration which, in Spain, extends throughout the author's life and 70 years after their death. Is it necessary to register a work? One of the most common questions is whether it is necessary to register a work in order for it to be protected. The answer is no: copyright is automatically created upon creation. However, registration may be advisable in certain cases. The Intellectual Property Registry allows for the recording of authorship and the date of creation, which can be especially useful in case of conflict or if it is necessary to prove ownership of the rights. Therefore, when a work is going to be exploited economically or it is planned to transfer rights to third parties, having this support can provide greater legal certainty. How to exploit the rights of a work The value of a work lies not only in its creation, but also in how its exploitation is managed. Economic rights can be assigned or licensed to third parties, such as publishers or other entities, who are responsible for their dissemination and marketing. This means that, in many cases, the author does not directly exploit the work, but authorizes its use under certain conditions. In this context, contracts play a key role, as they allow defining aspects such as: The scope of the rights assigned The duration of the assignment The territory in which the work can be exploited The modalities of use (editing, distribution, adaptation, etc.) Proper regulation of these aspects is fundamental to avoid conflicts and guarantee a correct exploitation of the work. A way to protect creativity. Book Day is, above all, a celebration of reading and of those who make stories possible. But it's also a good time to remember that creativity needs protection. Copyright not only recognizes the author's work, but also allows the works to be disseminated, exploited, and continue to generate value over time. To close this Book Day, we share some recommendations from the ELZABURU team, which reflect different ways of approaching reading: Antonio Castán recommends “The Very Catastrophic Visit to the Zoo”, by Joël Dicker “It is one of those fake children's novels that adults also enjoy reading. It's impossible not to be charmed by the innocence of its characters… it even manages to explain concepts like democracy with humor.” Alba Mª López recommends “Wide Sargasso Sea” by Jean Rhys. “Rhys gives context and depth to the Creole woman locked in the attic, describing her story amidst a lush and dark Caribbean, the social conflicts between the former slaves and the Creoles, the relationship with the metropolis, and the history of the interests and abuses by Mr. Rochester before the lockdown.” Mª Carmen Polo recommends “Invisible”, by Eloy Moreno “A story about bullying told from the eyes of a child. It makes you reflect and doesn't leave you indifferent.” Cristina Arroyo recommends “The Infinite in a Reed”, by Irene Vallejo “A work about the history of the book that deserves to be read and reread. A true marvel.” Irene Gascón recommends “The Pyramid of Thoth” by Pablo Gascón Escobar. “A book resulting from many years of research, combining lighthearted anecdotes with historical topics (told in a very engaging way), and identifying geographical sites that he has discovered are of great relevance to the history of humanity as we know it.” Asís González recommends “Fierce Children” by Lorenzo Silva. “A novel about young boys who end up experiencing the horrors of wars created by politicians who watch them from afar.” It invites reflection on the historical past and the process of literary creation.”

Judgment of the Court of Justice of 6 March 2025, Orchestre national de Belgique (C-575/23). 1. Key facts of the case The case arose from a dispute between several musicians of the Orchestre National de Belgique and the Belgian State, following the adoption of a Royal Decree of 1 June 2021 regulating the related rights of performers employed under administrative status. That decree imposed the automatic transfer of those rights to the employer, without prior consent. The performers challenged the regulation before the Belgian Conseil d'État, alleging its incompatibility with EU law, in particular Directives 2001/29/EC, 2006/115/EC and (EU) 2019/790 on copyright and related rights. 2. The Court's findings The CJEU addressed three main issues. First, the Court of Justice (CJEU) analyzes whether Directive (EU) 2019/790 applies to the case, even though the Royal Decree was adopted before the transposition deadline. The CJEU considers that the Directive does apply to assignments of rights that take effect after June 7, 2021, as they refer to acts not yet completed. Second, the CJEU interprets the concept of "performer" broadly, concluding that it also includes musicians employed under administrative contracts. Thus, such performers enjoy the same rights as performers under ordinary employment contracts. Finally, the CJEU declares that Directives 2001/29 and 2006/115 preclude national legislation that imposes, by regulation, the assignment of performers' rights without their prior consent. Consent is the core of the exclusive right, and its elimination would render the protection recognized by EU law meaningless. Commentary on the Judgment: The CJEU judgment strengthens the protection of performers against public authorities by confirming that their prior consent is essential for the transfer of related rights. The CJEU emphasizes that this requirement is an essential part of the European intellectual property system and that national laws cannot override it through general provisions. The ruling is particularly relevant for public cultural institutions, which will have to adapt their regulations to respect artists' consent. Furthermore, it clarifies the temporary application of Directive 2019/790 and consolidates the uniform interpretation of related rights in the EU, strengthening the artist's position vis-à-vis public authorities. Ana Sanz, Associate Partner, Legal Department. 

Judgment of the Court of Justice of 11 April 2024, Citadines (C-723/22). 1. Facts The judgment stems from a preliminary question raised by the Regional Civil and Criminal Court of Munich (Landgericht München I) in the context of the dispute between Citadines Betriebs GmbH (“Citadines”) and MPLC Deustchland GmbH b (“MPLC”), in relation to the communication to the public of an episode of a television series through televisions made available in the rooms and gyms of a hotel establishment owned by Citadines, for its customers to view it on free. To achieve this, the television signal was retransmitted within the hotel via an internally managed cable distribution system. MPLC is an independent, for-profit management operator representing audiovisual producers, who is taking action against Citadines requesting that the communication to the public of the episode referred to in the previous paragraph be stopped, the Regional Civil and Criminal Court of Munich issuing an order for provisional measures prohibiting the making of said episode available to the public. Following this action, Citadines filed an appeal with the Higher Regional Court of Civil and Criminal Affairs of Munich (Oberlandesgericht München), and MLPC responded by arguing that, despite Citadines having signed distribution license agreements with German collective copyright management societies, by retransmitting the signal through a cable distribution system of the establishment itself, it was violating the public communication right that it manages on behalf of the producers it represents. This doubt arises because the German Copyright Act (“UrhG”) divides the right of communication to the public, on the one hand, in its article 20b relating to retransmission; “The right to retransmit a work transmitted in the context of a simultaneous, unaltered and complete retransmission by means of cable or microwave systems (cable distribution) may only be exercised by a collective management society for copyright. This rule shall not apply to the rights exercised by a broadcasting organization in relation to its own broadcasts” and, on the other hand, in its article 22 relating to the communication of broadcasts; “The right to communicate broadcasts and to make them available to the public is the right to make broadcasts and to make such works available to the public through screens, loudspeakers or similar technical devices.” 2. Rulings In its preliminary question, the court asks whether Article 3(1) of Directive 2001/29/EC precludes a national practice which considers as communication to the public the provision of television sets in the rooms and gym of a hotel establishment when such televisions receive and retransmit the signal via cable distribution, even when there is a license for cable distribution subscribed with collective management entities. The Court recalls that, although it is for the national court to determine whether Citadines is carrying out an act of public communication, the CJEU provides the court with all the relevant elements of interpretation of EU law, and, in particular, states that: The mere making available of physical facilities (televisions) does not in itself constitute a communication to the public within the meaning of the Directive. The relevant question is whether there is an act that involves making a protected work available to a public (other than the original public of the transmission) through an act of communication. Regarding retransmission by means of a cable distribution system of the establishment itself, Directive 93/83/EEC (on cable distribution) defines and regulates this type of distribution act and distinguishes between the mere provision of a signal and acts which, due to their technical nature, can be classified as communication to the public. The existence of a license agreement with collective management entities for cable distribution does not in itself resolve the question of whether there is communication to the public in the European sense; that is, the contract is not enough: it is necessary to analyze whether there is an act of communication in accordance with Union Law. It is for the above reasons that the CJEU answers the preliminary question by determining that making available television sets installed in the hotel when, in addition, a signal is retransmitted to said televisions by its own cable, constitutes a communication to the public within the meaning of Article 3(1) of Directive 2001/29/EC. 3. Commentary The ruling addresses a classic problem in European intellectual property law: the delimitation of the concept of “communication to the public” to the detriment of specialized technical cases. The Court reaffirms the doctrine according to which not every act of merely making available technical means (such as televisions) is considered communication to the public if there is no transmissive act that implies making works available to a public in an intermediate phase. This avoids an expansive interpretation of the exclusive right that could encompass activities with no real impact on the licensing market, which would be contrary to the balance between protection and access to the internal market. By distinguishing between the regime of Directive 93/83/EEC (cable distribution) and Directive 2001/29/EC (copyright), the CJEU delimits two functionally distinct areas: Cable distribution may be regulated contractually and authorized by specific licenses; but communication to the public requires a factual legal judgment on the nature of the act, beyond the existence of such a license. The Court rightly points out that the determination of the material facts (whether the specific conduct constitutes communication to the public or not) is the responsibility of the referring court. This falls within the classic separation of functions between the CJEU —which interprets EU law— and national jurisdictions —which apply those standards to the facts—. This ruling has a direct impact on the interpretation of exclusive rights in technical and digital environments, especially when the transmission...Read more

Judgment of the Court of Justice of 24 October 2024, Kwantum (C-227/23) 1. Facts The Swiss furniture manufacturer, Vitra, holds the intellectual property rights to furniture designs created by Charles and Ray Eames (nationals of the United States), including the “DSW chair”. Vitra is suing the Dutch and Belgian retail chain, Kwantum, for marketing a chair that it considers infringes its intellectual property rights to the “DSW chair”. Example of a DSW chair. Source: Vitra The main proceedings reached the Supreme Court of the Netherlands, which decided to stay the proceedings and refer a question to the CJEU for a preliminary ruling in order to clarify the validity of the aforementioned copyright in the EU, given that the original work and its authors are based in the United States (a third country). The legal debate centered on whether EU legislation, specifically Directive 2001/29/EC, should apply to works of applied art from third countries and whether EU Member States can require, as a condition, the criterion of “material reciprocity” provided for in Article 2.7 of the Berne Convention to recognize copyright in such cases. 2. Rulings The Court of Justice declared that the situation described falls within the material scope of Directive 2001/29/EC. That is to say, the exclusive rights established by that Directive can be extended to works originating from third countries, provided that such works meet the requirements of originality to be classified as a “work.” Consequently, the CJEU interprets the copyright enshrined in the Directive, in conjunction with the fundamental rights recognized in the Charter of Fundamental Rights of the European Union, as precluding Member States from making the exercise of those rights subject to the principle of “material reciprocity” provided for in the Berne Convention (i.e., they cannot require that the work be “equally protected” in its country of origin). Such a limitation, if imposed, would have to come from an explicit EU rule. 3. Commentary This judgment represents a milestone in the protection of design creations and works of applied art in the EU internal market when they originate from third countries. It prevents Member States from unilaterally imposing additional requirements (such as “material reciprocity”) that could fragment the internal market and weaken the protection of authors. In practice, it strengthens legal certainty for foreign (non-European) copyright holders by ensuring that they can invoke the protection of the Directive in any Member State, without discrimination. Furthermore, it prevents the reciprocity principle from serving as a technical or formal barrier to the effective circulation of protected works. Ultimately, it strengthens the coherence of the harmonized copyright regime in the EU. María Cadarso, Senior Associate in the Legal Department.

Judgment of the Court of Justice of 14 November 2024, Reprobel (C-230/23). 1. Facts The dispute arises in Belgium, between Reprobel CV (“Reprobel”), a collective management entity designated by the Belgian state to guarantee the receipt and distribution of the remuneration provided for by national regulations for the making of copies of protected works in certain cases (such as reproduction for private use), and Copaco Belgium NV (“Copaco Belgium”), a distributor of computer reproduction equipment such as photocopiers and scanners, and therefore subject to the payment of said compensation under Belgian legislation. Until the end of 2016, Copaco paid Reprobel lump sum remuneration for the reproduction of protected works. Following the judgment in the Hewlett-Packard Belgium case (C-572/13), which declared certain aspects of the Belgian scheme contrary to Directive 2001/29/EC —for providing fixed remuneration unlinked to the actual use of equipment and without corrective mechanisms to avoid overcompensation—, Copaco Belgium suspended payment of invoices issued by Reprobel between November 2015 and January 2017. The company invoked the direct effect of the aforementioned Directive and indicated that it would not resume payments until Belgian law was brought into line with Union law. In March 2017 a new equitable compensation system came into effect in Belgium, without Reprobel resuming payments. On December 16, 2020, Reprobel filed a lawsuit and demanded that Copaco Belgium pay the equitable compensation provided for by Belgian legislation on copyright and related rights, for the marketing of multifunctional equipment and digital media capable of making copies. Copaco Belgium contested this claim, arguing that it was not acting as an end user or as an entity obligated to pay, but merely as a distributor within the supply chain. The referring body decided to suspend the proceedings and refer several preliminary questions to the Court of Justice concerning the possibility of invoking the direct effect of Directive 2001/29 against a collective management entity and whether the national court must disapply legislation incompatible with Union law. 2. Rulings The Companies Court of Ghent (Belgium) referred a preliminary question to the CJEU, requesting an interpretation of various provisions of Directive 2001/29/EC, in particular Articles 5(2)(a) and (b), on exceptions and limitations to the right of reproduction and the corresponding equitable compensation. First, the Court focuses on analyzing the Belgian compensation system and Reprobel's role and powers within that system. The Court confirms that Belgian regulations provide for a mixed compensation system, consisting of a fixed part (lump sum) and a proportional part, paid for by the purchasers of the equipment or reproduction services, the collection and distribution of which corresponds to Reprobel. Next, the CJEU examines whether Reprobel, as the only entity authorized in Belgium to collect and distribute equitable compensation for private copying and reprographics, has exorbitant powers regarding relations between individuals. It concludes affirmatively, given that Reprobel is legally entitled to claim payment of remuneration from manufacturers and distributors, as well as to request information necessary to determine the debtors and the amounts owed, under penalty of criminal sanctions for non-compliance. It can also obtain information from customs, tax and social security authorities, which reinforces its position as an entity endowed with public prerogatives. Furthermore, the CJEU states in its third preliminary question that Article 5(2)(a) and (b) of Directive 2001/29/EC allows individuals to invoke before national courts the non-compliance with Union law against an entity such as Reprobel, when the latter acts in the exercise of a mission of public interest endowed with exorbitant powers. In such cases, individuals may oppose the application of national rules contrary to Union law, given that the entity operates as an extension of the State in the execution of the obligations arising from Directive 2001/29. In its fourth preliminary question, the CJEU recalls that the provisions of a directive can have direct effect when they are unconditional and sufficiently precise, allowing individuals to invoke them before national courts against the State in the event of incorrect or non-existent transposition. In this respect, Article 5(2)(a) and (b) of Directive 2001/29 imposes a clear and specific obligation on Member States to ensure fair compensation, without making it subject to further measures. Consequently, national judges must ensure the primacy and full effectiveness of Union law, leaving conflicting domestic rules inapplicable. The CJEU therefore concludes that Article 5(2)(a) and (b) of Directive 2001/29/EC precludes national legislation that imposes a double equal compensation levy — for private copying and for reprographics — on the same equipment or media without differentiating the uses that justify each modality, as it generates excessive compensation and infringes the principles of proportionality and neutrality of the internal market. Additionally, the CJEU extends the direct effect of the Directive to cases where an individual files claims against the entity that collects equitable compensation for acts of reproduction, which implies that the national court must exclude the application of national rules contrary to the Directive when the specific case so requires. 3. Commentary: The ruling represents a significant doctrinal advance regarding the direct effect of directives in the field of copyright, especially concerning equitable compensation for exceptions and limitations to the right of reproduction. By stating that the relevant provisions of Directive 2001/29/EC have direct effect, the Court consolidates a body of case law that allows individuals to invoke European rules directly against management entities acting in the exercise of extraordinary public powers. From the perspective of EU law, this ruling underlines the effectiveness of European law against national regulations that may have incorrectly transposed the...Read more

Supreme Court Judgment of February 26, 2025, Farola Latina (ECLI:ES:TS:2025:735) 1. Facts The sentence stems from the lawsuit filed in Barcelona by a Spanish architect against the company Ashghal and the State of Qatar, for infringement of intellectual property rights over a certain design work of a lamppost model "LATINA". The author argued that her work had been “copied and forged” by the defendants in the installation of streetlights on Al Waab Avenue in Doha (Qatar). In addition to the removal of the streetlights, the lawsuit sought compensation of 100.000 euros. LATINA model streetlamp installed on Avenida de Barcelona (Terrassa). Source: Urbidermis The conflict dates back to 2005, when the first contacts were made between Santa & Cole (a company that exploited the plaintiff's designs in several countries) and the public entity Ashgal, of Qatar, with the aim of carrying out a comprehensive proposal for the lighting of Al Waab Avenue, in Doha. The failure of the lengthy negotiations motivated the action that was finally filed. The defendants raised a declinatory plea for lack of international judicial jurisdiction, which was accepted by the court. The plaintiff appealed this decision and the Provincial Court issued an order on March 12, 2015 (ECLI:ES:APB:2015:1256A) revoking it and dismissing the declinatory plea. The lawsuit was resumed, and the claim was partially upheld by the Court, reducing the compensation to 50.000 euros (ECLI:ES:JMB:2018:8060). The judgment having been appealed by both parties, the fifteenth section of the Provincial Court of Barcelona issued a judgment on March 6, 2020 (ECLI:ES:APB:2020:2644) in which the two appeals were partially upheld and the sentence was left in the following terms: the sentence was limited to Ashgal, acquitting the State of Qatar; only the right to the paternity of the work and the right to its integrity were considered to have been infringed, but not the right to disclosure; the amount of compensation was set at the sum of 100.000 euros. The appeal ruling is appealed to the Supreme Court by the defendants, in a document that raises 33 grounds of procedural infringement and 4 grounds of cassation. 2. Pronouncements The first issue raised in the appeal is the violation of the provisions of the rules relating to the scope of Spanish jurisdiction (article 52.1.11 of the Civil Procedure Law). The Supreme Court acknowledges that the reasoning presented in the appealed judgment demonstrates “a profound knowledge of the case law of the CJEU,” but considers that “the inaccuracy of some of its premises leads to the conclusion reached (affirming the international jurisdiction of Spanish courts) being incorrect.” As a preliminary matter, the judgment notes that, although Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (hereinafter, Regulation 44/2001 or Brussels I Regulation) is not directly applicable, the case law of the CJEU interpreting it is useful because the rules on international jurisdiction contained in the Organic Law of the Judiciary are based on the regulations of the 1968 Brussels Convention, the provisions of which were incorporated, with few modifications, into Regulation 44/2001. The judgment of the CJEU of 3 October 2013, C-170/12, Pinckney, citing previous judgments, held that, as an exception to the fundamental principle set out in Article 2(1) of Regulation 44/2001, which confers jurisdiction on the courts of the Member State in whose territory the defendant is domiciled, Chapter II, Section 2, of that Regulation provides for a number of special conferrals of jurisdiction, including that provided for in Article 5(3) of that Regulation. Since the jurisdiction of the courts of the place where the damaging event occurred or could occur is a special rule of jurisdiction, it must be interpreted strictly, without allowing an interpretation that goes beyond the cases explicitly contemplated in the Regulation. The expression "place where the damaging event occurred or could occur", which appears in Article 5, point 3, of the Regulation, refers at the same time to the place where the damage materialized and to the place of the causal event that caused that damage, so that the action may be exercised, at the plaintiff's choice, before the courts of either of those two places. The rule of competence established in Article 5, point 3, of the Regulation is based on the existence of a particularly close connection between the dispute and the court of the place where the damaging event has occurred or may occur, which justifies an attribution of competence to that court for reasons of good administration of justice and proper conduct of the proceedings. The CJEU has also declared, in the judgment of 19 September 1995, C-364/93, Marinari, that, although it is admitted that the concept of "place where the damaging event occurred", within the meaning of Article 5(3) of the Convention (equivalent to Article 5(3) of the Convention) 5.3 of Regulation 44/2001), may refer both to the place where the damage occurred and to the place of the event causing it; this concept cannot be interpreted in an extensive way to encompass any place where the harmful consequences of an event that has already caused damage that actually occurred elsewhere may be experienced. Moreover, in the judgment of 10 June 2004, C-168/02, Kronhofer declared that this provision must be interpreted to mean that the expression "place where the damaging event occurred" does not include the place of the plaintiff's domicile where the "center of his assets" is located, simply because the plaintiff suffered economic damage in that place as a result of the loss of part of his assets that occurred and was suffered in another Contracting State. The ruling goes on to reiterate that...Read more