Judgment_paragraph 40 · Société de perception et de distribution des droits des artistes-interprètes de la musique et de la danse (Spedidam) and Others v Institut national de l’audiovisuel (C-484/18)

40However, as the Court, in its judgment of 16 November 2016, Soulier and Doke (C‑301/15, EU:C:2016:878, paragraph 35), has previously pointed out with regard to authors’ exclusive rights, Articles 2(b) and Article 3(2)(a) of Directive 2001/29 do not specify how the performer’s prior consent is to be given, so that those provisions cannot be interpreted as requiring such consent to necessarily be expressed in writing or explicitly. On the contrary, it must be concluded that those provisions also allow the consent to be expressed implicitly, provided, as the Court pointed out in paragraph 37 of that judgment, that the conditions under which implicit consent may be accepted are strictly defined, in order not to deprive the very principle of prior consent of any effect.