Case C-177/16, Autortiesību un komunicēšanās konsultāciju aģentūra – the dominant position of a copyright collecting society [judgment 2017, ECLI:EU:C:2017:689]

Comment
A similar concern about a breach of a dominant position was raised in Case C-351/12, OSA ECLI:EU:C:2014:110; see further, Case C-351/12, OSA – EU copyright law checks in for a long stay at a health spa.

Aspects of competition law and state aid law were also raised in the still-pending collecting society case of Case C-110/15, Nokia Italia – professional-use media equipment and Italian private-copy rules.

Update – 6 June 2016
Questions Referred
According to today’s OJ C200, the Latvian court has asked:

1. Is subparagraph (a) of [the second paragraph] of Article 102 of the Treaty on the Functioning of the European Union applicable to a dispute concerning the rates laid down by a national copyright management organisation if that entity also collects remuneration in respect of works of foreign authors and the rates laid down by it may be a deterrent to the use of those works in the Member State in question?

2. For the purpose of defining the concept of unfair prices used in subparagraph (a) of [the second paragraph] of Article 102 of the Treaty on the Functioning of the European Union, in the context of the management of copyright and related rights, is it appropriate and sufficient — and in which cases — to draw a comparison between the prices (rates) in the market in question and the prices (rates) in neighbouring markets?

3. For the purpose of defining the concept of unfair prices used in subparagraph (a) of [the second paragraph] of Article 102 of the Treaty on the Functioning of the European Union in the context of the management of copyright and related rights, is it appropriate and sufficient to use the purchasing power parity index based on gross domestic product?

4. Must the comparison of rates be made for each separate segment thereof or in relation to the average level of the rates?

5. When must it be considered that the difference in the rates examined in connection with the concept of unfair prices used in subparagraph (a) of [the second paragraph] of Article 102 of the Treaty on the Functioning of the European Union is appreciable, with the result that it is incumbent upon the economic operator enjoying a dominant position to demonstrate that its rates are fair?

6. What information can reasonably be expected from an economic operator to prove the fair nature of the rates for works covered by copyright, within the scope of subparagraph (a) of [the second paragraph] of Article 102 of the Treaty on the Functioning of the European Union, if the cost of those works cannot be determined in the same way as that of products of a material nature? Is it solely a question of the cost of administering the copyright management organisation?

7. In the event of infringement of competition law, is it appropriate to exclude from the business turnover of a copyright management organisation, for the purposes of determining a fine, the remuneration paid to authors by that economic operator?