The CJEU has handed down its judgment in Atresmedia, finding that:
- When a sound recording (phonogram) is incorporated into a video, there is no resulting "separate" right in the sound recording.
- The reproduction right and the communication to the public right in the sound recording is not engaged by the video itself - it is only a video.
We're digging in to the decision and considering the potential wider impacts of it. If there is no reproduction or communication to the public of a sound recording once it is incorporated into a video, that suggests:
- only the sync needs to be cleared when the sound recording is paired with the video; and
- performers' rights in the sound recording are not engaged by the reproduction / CTP of the video.
51 Since, for the reasons set out in paragraphs 34 to 41 above, an audiovisual recording containing the fixation of an audiovisual work cannot be classified as a ‘phonogram’ [...], such a recording cannot, on the same grounds, constitute a copy of that phonogram or, therefore, be covered by the concept of ‘reproduction’ of that phonogram, within the meaning of those provisions. 52 In those circumstances, it must be held that an audiovisual recording containing the fixation of an audiovisual work cannot be classified as a ‘phonogram’ or ‘reproduction of that phonogram’ [...]. 53 It follows that the communication to the public of such a recording does not give rise to the right to remuneration provided for in those provisions.