Court finds musicians’ body has role in calculating amounts payable 

Millions collected in licence fees from public broadcast and performance of members’ work 
 
A musicians’ body has a role in calculating amounts payable to it from millions collected in licence fees from the public broadcast and performance of it members’ work, the Court of Appeal (CoA) has found. 
The CoA also found that copyright law does not impose any mandatory management rights in favour of any organisation which acts as a collection agency for those fees. In a judgment on Friday, the court allowed an appeal by the musicians’ group, the Recorded Artists Actors Performers Ltd (RAAP), in proceedings it took against the record companies organisation, Phonographic Performance (Ireland) Ltd (PPI). 
 
The Court of Appeal disagreed with findings of the High Court last year in relation to preliminary matters dealt with in advance of the main hearing. The Court of Appeal will make orders later to vary those findings. The dispute between the two bodies arises out of what the Recorded Artists Actors Performers claimed was the unilateral decision of Phonographic Performance Ireland to change the basis on which performers’ share of licence fees collected by the PPI was calculated. The Recorded Artists Actors Performers claimed the payments were substantially reduced and not the European Union norm. 
 
Figures for 2016 and 2017 showed about €11 million was collected each year with some €2 million paid to performers, claims the RAAP. Phonographic Performance (Ireland) denied the claims and said it has a statutory duty to determine payments to performers. Last year, the High Court’s Mr Justice Garrett Simons said if the legislative intent was to create a form of exclusive licence contended for by the Recorded Artists Actors Performers, the criteria would have been contained in the Copyright and Related Rights Act 2000 but they were not. 
 
He found a collecting society is entitled to negotiate on behalf of its members and to collect the amounts payable in accordance with a scheme of distribution. But he said it has no function in making the final decision as to how licence fees are to be distributed between performers and producers and between performers themselves. That function resides with the Controller of Patents and Designs, he said. 
 
The separate mechanical function of calculating the payments due to individual performers in accordance with a distribution scheme is a matter for the producer, such as the PPI, he held. The Recorded Artists Actors Performers brought an appeal which was opposed by the Phonographic Performance Ireland. 
 
Ms Justice Caroline Costello, on behalf of the three-judge Court of Appeal, allowed the appeal. She said the Copyright Act does not place a statutory obligation on either RAAP or the PPI to determine how much is paid to performers. The Recorded Artists Actors Performers has a role amounts payable to individual performers for whom it is authorised to act, and it does so through the distribution scheme adopted by its members and right-holders, she said. It was not for Phonographic Performance Ireland to calculate all payments due to all individual performers as appeared to be the implication of the High Court judgment, she said. 
 
Any agreement in relation to amounts payable must be between PPI and RAAP. Where there is disagreement, dispute resolution mechanisms provided under the Act may be invoked and the Controller of Patents will determine the payments to be made, she said. The Recorded Artists Actors Performers has no role in relation to remuneration payable to performers who have no agreement on who should represent them, she said. 
 
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