Facts

Until the end of 2002, SUISA, the Swiss Society for the Rights of Authors of Musical Works, had a Tariff R for the use of music in television advertising. Effective January 1, 2003, SUISA introduced the new "Tariff W Advertising Broadcasts of SRG SSR idée suisse" and subjected the reproduction rights to the simultaneously adjusted existing "Tariff VN Recording of Music on Audio-Visual Carriers, which are not distributed to the public". These tariffs were approved by the Federal Arbitration Commission for the Exploitation of Copyrights and Related Rights.

Subsequently, SUISA revised the distribution regulations. In doing so, it decided that under the new Tariff W, the distribution of the compensation to the beneficiaries would no longer be calculated per advertising film, but based on a uniform rate per broadcast (broadcast time). In addition, the distribution class 1F "Sound Carriers of Advertising Broadcasts on Television" was merged with the distribution class 1E "Advertising Broadcasts on Television" and the allocation of 25% of the revenue from distribution class 1E to class 1C "Television Broadcasts without Advertising" was provided for.

By order of August 18, 2003, the Federal Institute for Intellectual Property approved the amendment to the distribution regulations and their retroactive entry into force on January 1, 2003. Subsequently, seven beneficiaries filed an "administrative appeal (jump appeal)" with the Appeals Commission for Intellectual Property, requesting in particular the revocation of the approval order.

By order of June 1, 2006, the Institute approved a further revision of the distribution regulations for Tariff W, which was designed as a provisional regulation for a transitional period of three years. The seven beneficiaries also appealed against this approval order to the Appeals Commission.

On November 15, 2006, the Appeals Commission transferred the two pending appeal proceedings to the newly established Federal Administrative Court, which on July 23, 2007 partially upheld the two appeals, revoked the Institute's approval orders and dismissed SUISA's applications for approval of the amendments to its distribution regulations.

Considerations

The Federal Supreme Court concluded that the appellant SUISA is entitled to appeal in public law matters, as the collecting society has a legitimate interest in ensuring that the distribution…