Cases C-162/10 Phonographic Performance (Ireland) Limited (PPL), and C-135/10 Società Consortile Fonografici (SCF)

Last week, the ECJ released two judgments regarding the issue of copyrights on music broadcasts. According to EU law (specifically, Directive 2006/115), artists have a right to remuneration when recordings of their work are communicated to the public. But what exactly does ‘communication to the public’ entail?

In the PPL case, an Irish court asked the ECJ for a preliminary ruling to clarify whether ‘communication to the public’ includes broadcasts by a hotel to guests in hotel bedrooms, and whether Ireland was therefore in violation of European law when it exempted hotels from paying remuneration for these broadcasts. In the SCF case, an Italian court asked the ECJ to clarify whether ‘communication to the public’ includes background music played by a dentist in a dental practice.

The Court held that determining whether the hotel’s or the dentist’s broadcasts were ‘communication to the public’ would require an individual, case-specific analysis focused on three overlapping factors:

  • the role of the user, which engages in ‘communication’ when it intervenes to give access to a protected work
  • the concept of the public, which refers to an “indeterminate number of potential listeners” and “implies a fairly large number of persons”
  • whether the communication is of a profit-making nature, as judged by whether the user benefits, whether the user targets the public, and whether the public is receptive in some way, rather than merely listening by chance

While both the hotel and the dentist were ‘users’ engaging in communication, the ECJ found that the two situations differed with respect to the second and third criteria. The hotel’s customers were a ‘public’ because they were of ‘indeterminate number’ and were ‘a fairly large number of persons’ (PPL, paras. 41-42). The dentist’s clients, on the other hand, were not a ‘public’ because they formed a consistent, determinate group, and because only a small number would be present in the office listening to the broadcast at the same time (SCF, paras. 95-96). Similarly, the hotel’s broadcast was of a ‘profit-making nature’ because it was “an additional service which has an influence on the hotel’s standing and, therefore, on the price of its rooms” and “is likely to attract additional guests who are interested in that additional service” (PPL, para. 44). The dentist’s broadcast, on the other hand, was not of a ‘profit-making nature’ because the dentist “cannot reasonably either expect a rise in the number of patients because of that broadcast alone or increase the price of the treatment he provides” and because the patients are not ‘receptive’, but rather listen to the music merely by chance (SCF, paras. 97-98).

As a result, the dentist is not making a ‘communication to the public’ and is not required to pay remuneration. The hotel, however, is making such a communication, and is required to pay remuneration. According to the ECJ, therefore, Ireland should not have exempted hotels from this requirement.

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