There have been several copyright cases in the past few years before the European courts concerning what is or is not a “communication to the public”. The latest concerned broadcasts by air and rail transport companies in Romania.
In its recent judgment (Joined Cases C-775/21 and C-826/21), the EU Court of Justice held that Article 3(1) of the 2001 Copyright Directive “must be interpreted as meaning that the broadcasting, in a means of passenger transport, of a musical work as background music constitutes a communication to the public within the meaning of that provision”.
It explained that the public in question in the first case consisted of all the groups of passengers on the flights, that this number of people was not too small or insignificant to constitute a public and that there was no requirement for the communication to have a profit-making nature.
However, the Court said that the same article (as well as Article 8(2) of the Rental Rights Directive) “must be interpreted as meaning that the installation, on board a means of transport, of sound equipment, and, where appropriate, of software enabling the broadcasting of background music, does not constitute a communication to the public within the meaning of those provisions”.
The Court noted that it had previously ruled that the operators of a public house, hotel or spa perform an act of communication when they deliberately transmit protected works to customers by TV or radio sets, as do the operators of a rehabilitation centre. But it added:
“However, the mere installation of sound equipment in a means of transport cannot be comparable to acts by which service providers intentionally transmit protected works to their customers by distributing a signal by means of receivers which they have installed in their establishment, allowing access to such works.”
The consequence of the Court’s findings was that national legislation that establishes a rebuttable presumption that musical works are communicated to the public because of the presence of sound systems in means of transport is precluded.
The Court said that such legislation may require payment of remuneration for the mere installation of sound systems even in the absence of any act of communication to the public.
The cases were brought by two Romanian collective management organisations against Blue Air and CFR respectively seeking payment for the broadcasting without a licence of musical works on aircraft and trains.
What does this mean?
The Court’s latest ruling on “communication to the public” takes a common-sense approach that should provide clarity for both copyright owners and transport companies.
It also highlights the importance for any business that broadcasts copyright material to ensure that it has all the required licences in place.