Brief reaction Sena to the Atresmedia judgement

On November 18, 2020 the European Court of Justice ruled in the Atresmedia case that the claim for remuneration of Article 8(2) of Directives 92/100 and 2006/115, European guidelines about neighboring rights, is not applicable when a user “communicates to the public an audiovisual recording containing the fixation of an audiovisual work in which a phonogram or a reproduction thereof”.

In the Neighboring Rights Act of 1993 (NRA), the Netherlands have assigned much more rights to performers and producers of phonograms, e.g. a prohibition right for all forms of exploitation. As such, not only a claim for remuneration for certain forms of use, as the guideline states as a minimum.

This means that if a certain form of use does not qualify for a claim for remuneration by Sena under the NRA, this automatically falls under the prohibition right of performers and record producers. Use without their permission is a violation and liable for damages.

Furthermore, both rights-holders and music users always assumed (under the NRA) that television stations also paid for most forms of audiovisual programs containing recorded music, as the jurisprudence shows.

Sena is studying the situation as it has now arisen.