MusicMatic - The French Supreme Court’s Decision on Creative Commons Plus (CC+) Commercial Licensing and Mandatory Collective Management of the Right to Remuneration for Communication to the Public of Commercial Phonograms

Abstract

The French Supreme Court established that businesses using on their premises devices provided by third parties for making background music are per- forming an act of communication to the public in the sense of Art. L214-1 of the French Intellectual Property Code (CPI). The Court qualified commercially licensed phonograms, also published under Creative Commons non-commercial licences (CC BY-NC-ND 3.0) on the Jamendo online platform, as ‘‘phonograms published for commercial purposes’’. According to the Court, the right to remuneration for communication to the public of phonograms published for commercial purposes cannot be contractually waived by performers. The right to remuneration is subject to mandatory management by a collective management organisation (CMO) regardless of whether rightholders have explicitly contractually entrusted the exercise of their rights to the CMO. Mandatory collective management of the right to remuneration for communication to the public of phonograms published for commercial purposes is compatible with EU law. The Supreme Court declined to refer the question of the compatibility of mandatory collective management to the Court of Justice of the European Union (CJEU), considering that the law is sufficiently clear in this regard.