The EU Court of Justice held that the broadcasting of copyrighted content in a means of passenger transport qualifies as an act of communication to the public within the meaning of EU law. However, the mere installation of sound equipment in trains and aircrafts enabling the potential subsequent broadcasting of copyrighted content does not as such constitute a communication to the public giving rise to a financial compensation for the author (Joined Cases C-775/21 and C-826/21)
• To refresh your memory
Article 3 of Directive 2001/29 (“InfoSoc Directive”) provides that authors have the exclusive right to authorise or prohibit any communication to the public of their protected works. The notion of “communication to the public” includes two cumulative criteria, namely (i) an act of transmission or retransmission of a work and (ii) the communication of that work to a public.
The interpretation of this autonomous notion requires an individual and factual assessment of the case at hand. Whereas the broadcasting of protected works in hotel rooms (C-306/05, Rafael Hoteles), rehabs (C 117/15, Reha Training) or spas (C 351/12, OSA) has been considered by the Court of Justice (“the Court”) as acts of communication to the public, the Court surprisingly ruled the contrary with respect to the broadcasting of protected works in dentist waiting rooms (C-135/10, Del Corso). More recently, the Court found that the hiring out of motor vehicles equipped with radio receivers does not constitute a communication to the public (C-753/18, Stim and SAMI).
The commented judgment of 20 April 2023 deals with the broadcasting of background music in a means of passenger transport.
• Facts of the joined cases
Actions had been brought against the air and railway transport companies Blue Air and CFR by a collective management organization (“CMO”) to seek payment of remuneration due for the communication to the public of musical works on board. The aircrafts and train carriages were equipped with sound equipment and software that allowed musical works to be broadcasted. The CMO considered this feature as an act of communication to the public which should give rise to a payment of licence fees by the transport operators.
In first instance, the claims succeeded in relation to Blue Air but not to CFR. Both cases were brought before the Court of Appeal of Bucharest which then asked the Court to rule on the interpretation of the notion of communication to the public in relation to:
(i) the broadcasting of musical works as background music in aircrafts and
(ii) the mere installation of sound systems and related software which can be used to broadcast musical works in transport means.
• Findings of the Court
i) First preliminary question – the broadcasting of protected work
In its analysis of the first preliminary question, the Court reiterated that the broadcasting of a musical work in a means of passenger transport meets the two aforementioned criteria of a communication to the public.
In so doing, the operator on board indeed intervenes, in full knowledge of the consequences of its conduct, to give its passengers access to a protected work. In addition, the public consists in all the groups of passengers who, simultaneously or successively, make use of the means of transport.
The Court again emphasised that the lucrative nature (or lack thereof) of such a communication of background music to passengers is not decisive to establish the existence of a communication within the meaning of Article 3(1) of the InfoSoc Directive: “the profit-making nature of that kind is not a prerequisite”. This seems to marginalise once again the reasoning of the Court in the above-mentioned Del Corso case (C 135/10, SCF).
ii) Second preliminary question – the installation of equipment enabling the broadcasting of protected work
The examination of the second preliminary question addressed whether Article 3(1) of the InfoSoc Directive and Article 8(2) of Directive 2006/115 (“Rental and Lending Rights Directive”) must be interpreted as meaning that the mere installation, on board a means of transport, of sound equipment and of software, enabling a subsequent and potential broadcasting of background music, constitutes a communication to the public within the meaning of those provisions.
Recital 27 of the InfoSoc Directive states that “the mere provision of physical facilities for enabling or making a communication does not in itself amount to communication”.
The Court reverted to this recital by making a clear distinction between (i) the mere provision of physical facilities that enable a possible communication to the public by the installation of a sound system or software and (ii) the subsequent and effective use of the facilities by the intentional distribution of a protected work through the sound system or software. It is settled case law that the latter falls under the definition of a communication to the public while the former does not.
Since in both the aircrafts and trains, there was only a mere installation of sound systems, which offered the possibility of being used for the intentional distribution of protected works, the Court held that this installation does not in itself constitute a communication to the public.
iii) Third preliminary question – the rebuttable presumption of a communication to a public
This interpretation seamlessly brought the Court to answer the third preliminary question, related to the interpretation of Article 8(2) of the Rental and Lending Rights Directive. The Court held that since the mere installation of sound equipment does not constitute a communication to the public, this provision precludes national legislation establishing a rebuttable presumption that musical works are communicated to the public because of the mere presence of such sound systems in a means of passenger transport.
This matter again demonstrates that, on the matter of communication to the public, the Court is very active in adjudicating law and is brought to examine very similar cases. These joined cases are no exception and result in a further consolidation of the Court’s case law.
For further information about this case and/or for general legal advice relating to intellectual property, please contact Karel Janssens and/or Marion Nuytten.