On 2 April 2020, the EU Court of Justice ruled in case C‑753/18 that the hiring out of cars equipped with a radio does not constitute a communication to the public.
The main question submitted to the Court was whether the hiring out of cars equipped with a radio receiver constitutes an act of communication to the public within the meaning of Article 3 of the InfoSoc Directive (Directive 2001/29/EC) and within the meaning of Article 8 of the Rental Right and Lending Right Directive (Directive 2006/115/EC). If so, car rental companies would be liable for the payment of copyright fees to collective management organisations for the music transmitted through the radios.
In his Opinion, Advocate General Szpunar had pointed out that the act of communication to the public has already led to many decisions by the Court, and that this case law has become quite fragmented and was even referred to as a “maze”. He concluded, however, that in this case, no act of communication to the public takes place.
According to the case law of the EU Court of Justice, a communication to the public comprises two elements: an act of communication of a protected work and a public to which the communication is addressed. The act of communication to the public should be understood in a broad sense, covering all communication to the public not present at the place where the communication originates, whether by wire or wireless transmission or re-transmission.
In assessing whether acts consist of a communication to the public, the Court has emphasised the indispensable role played by the user and the deliberate nature of his intervention. That user makes an “act of communication” when he intervenes, in full knowledge of the consequences of his action, to give his customers access to a protected work, particularly where, in the absence of that intervention, those customers would not be able to enjoy the broadcast work or would be able to do so only with difficulty.
However, the mere provision of physical facilities for enabling or making a communication does not amount to an act of communication (see Recital 27 of the InfoSoc Directive). According to the Court, this is also the case of the supply of a radio receiver forming an integral part of a car, which makes it possible to receive the radio broadcasts available and this without any additional intervention by the rental company. Such a situation differs from acts of communication by which service providers intentionally broadcast protected works to their clientele, by distributing a signal by means of receivers that they have installed in their establishment. The Court hereby refers to its Reha Training case law. Hence, the rental companies’ activity does not constitute an act of communication to the public.
The Court’s ruling is another addition to the existing “maze” of case law relating to the complex notion of “communication to a public”. In this decision, the Court had the opportunity to emphasise (once again, cf. for example GS Media) the central role of the person providing access to the protected works and the deliberate nature of his intervention.
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