The so-called "CISAC Case" was a competition law case, brought by the EU Commission against a group of authors’ societies in Europe. It concerned only performance rights in music repertoire and the relationship between authors’ societies managing rights in music content. The proceedings focused on specific provisions in the reciprocal representation agreements signed between these societies. These provisions were based on a Model Contract for Reciprocal Representation, developed by CISAC many years ago.
The case commenced with two separate complaints filed with the EU Commission by commercial users. The first complaint was filed in 2000 by RTL Group (German broadcaster) and the second complaint was filed in 2003 by Music Choice (digital music provider). RTL complained against German authors’ society GEMA’s refusal to grant a community-wide license for the performing rights it administers on behalf of its members and foreign authors. The Music Choice complaint was against CISAC. It argued that certain provisions in the CISAC Model Contract for reciprocal representation prevented societies from granting multi-territory licenses and therefore violated EU competition rules.
The Commission investigated the two complaints together and in July 2008 issued its decision. The decision addressed 24 authors’ societies in Europe and alleged that the societies had engaged in concerted practices and illegally reached an arrangement on the territorial scope of their respective reciprocal representation agreements. This arrangement, according to the Commission, had made it impossible for societies to compete with one another in the grant of multi-territorial, multi-repertoire licences for digital rights exploitation of performing rights.
Additionally, the Commission found that societies prevented authors from joining the society of their choice and prevented each other from issuing licences for their own repertoire outside the territory in which they are based. The basic tenet of the Decision was that the EU is a single market and that any artificial barriers preventing its integration and the borderless provision of music should be abolished.
CISAC and the European societies strongly disagreed with the Commission’s allegations and appealed the Decision before the EU General Court. The focal point of these appeals was the allegation that societies had engaged in a concerted practice by coordinating the territorial scope of their reciprocal representation agreements. CISAC and the societies denied that any such arrangement ever existed.
On 12 April 2013, the General Court of the EU issued its ruling in the appeal. This landmark judgement annulled the 2008 decision of the EU Commission, and was a major victory for CISAC and creators alike.
In its ruling, the Court concluded that the Commission did not have sufficient evidence to prove its allegation that the societies have engaged in a concerted practice and coordinated the territorial scope of their agreements. The Court could have stopped at that, because the lack of evidence was sufficient to accept the appeal. However, the Court had chosen to look into the arguments put forward by CISAC and its members to support the position that the existence of similar territorial restrictions in different reciprocal agreements is the result of a logical and independent decision of each society.
The court considered the explanations for the parallel conduct of EU societies with respect to their mandates and decided that the Commission could not prove that these explanations were not plausible. In examining the explanations put forward by CISAC, the court provided important statements on the benefits of appointing a single society in a foreign market.