On 2 April 2020, the Court of Justice of the European Union (“CJEU”) rendered a judgment (C-753/18) in which the much-discussed concept of “communication to the public”, relevant for copyright-protected works in the EU, is further elucidated.
To refresh our minds, the right to authorise or prohibit any communication to the public of copyright protected works, such as songs, exclusively belongs to the author and the performer (e.g. the songwriter, the producer, the singer and the musician) (articles 3(1) of Directive 2001/29/EC and 8(1) Directive 2006/115/EC). Performers and producers must be equitably remunerated for the communication to the public of their songs (article 8(2) of Directive 2006/115/EC). It is thus extremely important to be well aware of what is and what is not considered as a communication to the public.
In a request for a preliminary ruling from a Swedish court, the CJEU was asked to determine whether the hiring out of cars equipped with radio receivers means that the person who hires the cars out is a user who makes a communication to the public.
The dispute opposes the Swedish collective management companies “STIM” and “SAMI” (the equivalents of SABAM, Playright, SACEM, BUMA/Stemra and SENA in the Benelux) against Swedish motor vehicle rental companies. The activity of these motor vehicle rental companies is to hire out vehicles equipped with radios, directly or via professional intermediaries. The duration of the rental term is limited to 29 days.
According to STIM and SAMI, the activity of the motor vehicle rental companies is considered as a contribution to copyright infringement, by making vehicles with a radio available to third parties - namely intermediary car rental companies - for short-term hire to private customers. The motor vehicle rental companies did not agree and started a legal action against STIM and SAMI.
In its analysis, the CJEU first reiterates that the two cumulative elements of a communication to the public are (1) an “act of communication” of the work, and (2) the communication of this work to a “public” (the reasoning of the Court’s decisions in C 161/17 Renckhoff, C 610/15 Stichting Brein and C 138/16 AKM is once again substantiated).
The crux that leads to the Court’s decision is recital 27 of Directive 2001/29, which states that the mere provision of physical facilities for enabling or making a communication does not in itself amount to communication [...]. Hence, the making available of a radio, integrated in a rental car, which makes it possible for users to receive the terrestrial broadcasts that are available in a certain area, without the further intervention of the leasing company, is not considered as an “act of communication” of a protected work. The Court hereby follows Advocate-General Szpunar’s opinion of 15 January 2020.
Additionally, the Court underlines that the provision of rental cars equipped with a radio receiver is essentially different from a communication of musical works to clients through receivers placed in professional establishments (reference is made to C-117/15 Reha Training) and that the provision of passenger spaces in rental cars (just like the provision of radios) is not to be considered as a “communication”.
The Court thus confirms and concludes that the hiring out of rental cars equipped with a radio does not constitute a “communication to the public” within the meaning of Article 3(1) of Directive 2001/29/EC and Article 8(2) of Directive 2006/115/EC.
This decision usefully clarifies what a “communication to the public” means.