“SIA AKKA/LLA v. LATVIA”

• 1. The protection of intellectual property rights, including the protection of copyright, falls within the scope of Article 1 of Protocol No. 1 to the Convention.

• 2. Two conditions must be met in order to comply with Article 34 of the Convention: an applicant must fall into one of the categories of petitioners mentioned in Article 34, and he or she must be able to make out a case that he or she is the victim of a violation of the Convention. In addition, in order for an applicant to be able to claim to be a victim of a violation of the Convention, there must be a sufficiently direct link between the applicant and the harm allegedly sustained on account of the alleged violation. Moreover, an association cannot claim to be itself a victim of measures alleged to have interfered solely with the rights of its individual members if the contested measure did not affect the organisation as such.

• 3. Once the domestic legal order attributes the protection of authors’ rights to an organisation founded by the authors for this purpose, and vests it with independent rights transferred from the authors, including the right to have its own property made up primarily of deduction from royalty payments, then that organisation must be regarded as the victim of measure affecting these rights.

• 4. The concept of “possessions” referred to in the first part of Article 1 of Protocol No. 1 has an autonomous meaning. In the case of non-physical assets, it has to be taken into consideration, in particular, whether the legal position in question gives rise to financial rights and interests and thus has an economic value.

• 5. In order to comply with Article 1 of Protocol No. 1 to the Convention, it must be shown that the measure constituting the interference was lawful, that it was “in accordance with the general interest”, and that there existed a reasonable relationship of proportionality between the means employed and the aim sought to be realised.

• 6. It is sufficient to conclude that the domestic courts’ competence to order parties to enter into a licence agreement and to set an equitable royalty rate in accordance with the respective national Copyright and Civil Laws and in light of the Berne Convention has some basis in the domestic law and the interpretation of those provisions cannot thus be called into question. The notion of “lawfulness” does not exclude judicial interpretation, for many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and whose interpretation and application are questions of practice.

• 7. Since the margin of appreciation available to the legislature in implementing social and economic policies is wide, the legislature’s judgment as to what is “in the public interest” will be respected, unless that judgment is manifestly without reasonable foundation. By considering that the fact that protected works are being broadcast without a valid licence is to a certain extent related to the organisation’s limited efficiency in carrying out negotiations with potential licensees, a domestic court maintains a balance between the rights of the organisation to obtain equitable remuneration from the use of musical work, on the one hand, and the broadcast companies' interest to obtain a licence allowing them to legally broadcast rights-protected work.

• 8. A fair balance between the demands of the general interest and the rights of an organisation is struck, when:

  • a) before laying down the royalty rate, the domestic courts endeavor to provide the parties with time to reach an agreement during the court proceedings,

  • b) national courts establish that in the circumstances where the parties in principle are willing to enter into an agreement, banning the broadcast of the music would not suit the best interests of copyright holders, and

  • c) the measure is limited in scope and time, so that the right of the organisation to renegotiate terms and conditions is minimally restricted.