Interpretation of the notions “communication to the public and “public”
Cases C-135/10, SCF and C-162/10, Phonographic Performance
Milena Takeva[1]
On the 15th March 2012, the Court of justice of the EU (hereinafter “ECJ” or “Court”) delivered two judgments[2] both concerned with the right of equitable remuneration for the use of phonograms. The Court examined whether broadcasting of protected works in dentals practices and in hotel bedrooms could be interpreted as “communication to the public” within the wording of SGAE ruling[3] and thus give rise to an obligation to pay equitable remuneration to the producers of phonograms.
The Court considered the indispensable role played by the user, certain aspects of the concept of “public” and the profit-making nature of the “communication”. The notion of “communication to the public” is interpreted broadly, aiming at ensuring a high level of protection of the beneficiaries of exclusive rental rights within the meaning of Directive 2006/115/EC. In the light of the relevant criteria, which are not autonomous and are interdependent, and in accordance with the declared need for an individual assessment, the Court gave disparate answers in the two judgments.
In the rulings discussed in the present article, the ECJ examined the existence of public and not the public or private character of the broadcast location. Thus, the argument of the privacy of the hotel bedroom is regarded as not relevant, however, the public or private nature of the use is crucial. The totality of the guests in the hotel in the case in Phonographic Performance, receptive to the broadcasting, their “indeterminate” nature and number and the profit-making nature of this communication, determine the existence of a potential public. As far as the patients of the dentist are concerned in the SCF case, the Court applied the same criteria, but reached a different conclusion. The patients generally form a very consistent group of persons and thus constitute a determinate circle of potential recipients of the broadcasting and not “persons in general”. Their limited number and the low impact of the broadcasting of phonograms on the services provided by that dentist played a significant role in reaching a conclusion contrary to that in Phonographic Performance case. The indispensable roles of the dentist and the hotel operator is emphasized in both judgments since without their intervention the customers could not enjoy the works broadcast, even though they are physically within the broadcast’s catchment area.
It follows from all of the foregoing considerations that a dentist who broadcasts phonograms free of charge in his dental practice, for the benefit of his clients and enjoyed by them without any active choice on their part, is not making a “communication to the public”, whereas a hotel operator which provides in guest bedrooms televisions and/or radios to which it distributes a broadcast signal is a “user” making a “communication to the public” of a phonogram which may be played in a broadcast for the purposes of Article 8(2) of Directive 2006/115/EC. Consequently, the broadcasting, made by the dentist, does not give rise to an obligation to pay equitable remuneration, while the hotel operator owes the producers of phonograms remuneration in addition to that paid by the broadcaster.
In conclusion, the Court ruled out the possibility for Member States to exempt a hotel operator which makes a “communication to the public” of a phonogram from the obligation to pay such remuneration, rejecting the “private use” of phonograms as it is not the private nature of the use of the work by guests of a hotel which is relevant, but whether the use made of the work by the operator himself is private or not.
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Линк към цялата статия на български език: ИЗПОЛЗВАНЕТО НА ТЕЛЕВИЗИЯ И РАДИО В ХОТЕЛСКИТЕ СТАИ И В ЗЪБОЛЕКАРСКИТЕ КАБИНЕТИ И ПРАВОТО НА ВЪЗНАГРАЖДЕНИЕ ЗА ПРОДУЦЕНТИТЕ НА ИЗЛЪЧЕНИТЕ ЗВУКОЗАПИСИ
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[1] Master in European Law (LL.M.), specialisation in European Litigation from the University of Luxembourg. Stagiaire at the private office of the president of the General Court of the EU.
[2] Case C‑135/10, SCF, ECR 2012 not reported yet, and Case C-162/10, Phonographic Performance (Ireland), ECR 2012 not reported yet.
[3] Case C-306/05, SGAE, ECR 2006 I-11519.