The broadcasting of a musical work as background music in a public means of transport constitutes a communication to the public within the meaning of EU copyright law, the Court of Justice of the European Union (CJEU) has recently affirmed. On the other hand, the mere installation of sound equipment and software enabling the broadcasting of such music on board is not tantamount to such communication.
EU copyright law obliges member states to ensure that their national laws provide for a number of exclusive rights for authors or neighbouring right holders in so far as their works are concerned. These rights extend from that of reproducing the work in question to communicating same to the public and distributing same.
Particularly, insofar as the exclusive right to communicate to the public is concerned, member states must ensure that copyright holders are entitled to authorise or prohibit any communication to the public of their works. Any infringement of such rights must be made subject to appropriate sanctions and remedies.
The facts of this case were briefly as follows.
Two Romanian collective management organisations handling music copyright and related rights filed national court proceedings against an air transport company and a rail transport company respectively. They claimed payment of remuneration and penalties for the broadcasting, without a licence, of musical works on board aircraft and train carriages. The air transport company maintained that though it has the software necessary for the broadcasting of musical works in 22 of the 28 aircraft it operates, it communicated to the public, after obtaining the required licence, only one musical work as background music, in 14 of those aircraft.
Furthermore, there was no profit-making objective behind such communication.
Limitations to such rights are necessary to ensure that an equitable balance between the intellectual property right holder and the rights of the public at large is maintained
Insofar as the railway company is concerned, the collective management organisation claimed that the applicable railway legislation required some of the trains operated to be equipped with sound systems and argued that the presence of such systems amounted to communication to the public of works.
Both defendants counter-argued that the fact that they had software on board necessary for the broadcasting of musical works, was not tantamount to a communication to the public.
The national court of first instance concluded that the fact that the aircraft and rail carriages are equipped with devices enabling the communication to the public of musical works as background music gave rise to a rebuttable presumption that musical works are so communicated.
Upon appeal, the national appellate court filed a preliminary reference before the CJEU requesting guidance as to on whether the broadcasting, inside a commercial aircraft occupied by passengers, of a musical work or a fragment of a musical work, via the aircraft’s public address system, constitutes a communication to the public, even though there is no profit-making objective. It also queried, whether the presence of sound systems intended for the communication of information to passengers is tantamount to a rebuttable presumption that there was a communication to the public of the works in question.
The CJEU observed that EU member states must endow authors with the exclusive right to authorise or prohibit any communication to the public of their works. Authors thus have the right to intervene to prevent persons or entities making use of their works from communicating same to the public.
It proceeded to note that the broadcasting by the operator of a public means of transport of a musical work as background music does constitute a communication to the public of the work in question. This is so, irrespective of any profit-making objective or otherwise behind such communication. In such cases, the operator would be intervening, in full knowledge of the consequences of its conduct, to give its customers access to a protected work. Thus, the protected work is broadcast to all the passengers making use of that means of transport. In the absence of any such intervention on the part of the operator, the customers would not, in principle, be able to enjoy the broadcast work.
On the other hand, having physical facilities on board a public means of transport for enabling or making a communication does not in itself constitute a communication to the public. Consequently, member states cannot enact national legislative measures which make provision for a rebuttable presumption that there is a communication to the public simply because of the presence of sound systems or of any related software which enables broadcasting in public means of transport.
Such a legislative approach may have the consequence of enabling copyright holders to request remuneration for the mere presence of such systems on board public means of transport, irrespective of any actual act of communication to the public, the CJEU concluded.
Intellectual property rights such as copyright are a means of ensuring that persons who invest time and money in innovation are remunerated for their efforts. Limitations to such rights are, however, necessary to ensure that an equitable balance between the intellectual property right holder and the rights of the public at large is maintained.
Mariosa Vella Cardona is an independent legal consultant specialising in European law.