From Curia to Caries: music to the public in the dentist's chair

Without a licence, some dentists
have resorted to singing on the job.
This stylish dental gag helps
to muffle the sound ...

Case C‑135/10, Società Consortile Fonografici (SCF) v Marco Del Corso, Procuratore generale della Repubblica intervening, was the second ruling of the Court of Justice yesterday on the question of what constitutes a "communication to the public" of a sound recording.  This was a reference for a preliminary ruling from the Corte d’appello di Torino (Italy), made in February 2010.

SCF, an Italian collecting agency, collects and distributes the royalties of phonogram producers. In this capacity it entered into negotiations with the Associazione Dentisti Italiani (Association of Italian Dentists) with a view to concluding a collective agreement quantifying the relevant equitable remuneration for any ‘communication to the public’ of phonograms, including such communication in private professional dental practices. After these negotiations failed, SCF sued a Turin dentist, Marco Del Corso, seeking a declaration that he was broadcasting, by way of background music in his surgery, phonograms protected by property rights, and that, since it constituted ‘communication to the public’ for Italian, European and international purposes and thus required remuneration.. Del Corso disagreed. In his practice, the music was being broadcast by radio: SCF could thus claim copyright only if the medium on which the phonogram had been fixed was used, whereas remuneration for listening to the broadcast was payable not by the listener, but by the radio or television broadcaster. Italian copyright law expressly distinguished between remuneration due for a disk and that due for use of broadcasting equipment.

The trial judge dismissed SCF's action.  On appeal, the Corte d’appello di Torino referred the following questions to the Court of Justice for a preliminary ruling:

‘1. Are the [Rome Convention], the [TRIPs Agreement] and the [WIPO Perfornances and Phonograms Treaty] directly applicable within the Community legal order? 

2. Are the abovementioned sources of uniform international law also directly effective within the context of private-law relationships? 

3. Do the concepts of ‘communication to the public’ contained in the abovementioned treaty-law texts mirror the Community concepts contained in Directives 92/100 and 2001/29 and, if not, which source should take precedence? 

4. Does the broadcasting, free of charge, of phonograms within private dental practices engaged in professional economic activity, for the benefit of patients of those practices and enjoyed by them without any active choice on their part, constitute ‘communication to the public’ or ‘making available to the public’ for the purposes of the application of Article 3(2)(b) of Directive 2001/29? 

5. Does such an act of transmission entitle the phonogram producers to the payment of remuneration?’

Yesterday the Court of Justice gave the following ruling:

"1. The provisions of [TRIPS] and of the World Intellectual Property Organisation (WIPO) Performances and Phonograms Treaty ... are applicable in the legal order of the European Union.

As the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations, adopted at Rome on 26 October 1961, does not form part of the legal order of the European Union it is not applicable there; however, it has indirect effects within the European Union.

Individuals may not rely directly either on that convention or on the agreement or the treaty mentioned above.

The concept of ‘communication to the public’ which appears in Council Directive 92/100 ... on rental right and lending right and on certain rights related to copyright in the field of intellectual property and Directive 2001/29 ... on the harmonisation of certain aspects of copyright and related rights in the information society must be interpreted in the light of the equivalent concepts contained in the convention, the agreement and the treaty mentioned above and in such a way that it is compatible with those agreements, taking account of the context in which those concepts are found and the purpose of the relevant provisions of the agreements as regards intellectual property.

2. The concept of ‘communication to the public’ for the purposes of Article 8(2) of Directive 92/100 must be interpreted as meaning that it does not cover the broadcasting, free of charge, of phonograms within private dental practices engaged in professional economic activity, such as the one at issue in the main proceedings, for the benefit of patients of those practices and enjoyed by them without any active choice on their part. Therefore such an act of transmission does not entitle the phonogram producers to the payment of remuneration.".

The IPKat is fascinated by what the Court says at [95] to [98]:

"95... as regards the patients of a dentist such as the one in the case in the main proceedings, it must be observed that they generally form a very consistent group of persons [What does this mean? That they have consistently bad teeth -- or that they consistently go to the dentist?] and thus constitute a determinate circle of potential recipients, as other people do not, as a rule, have access to treatment by that dentist. Consequently, they are not ‘persons in general’ ....[how precisely does this distinguish them from hotel guests?]

96 As regards ... the number of persons to whom the same broadcast phonogram is made audible by the dentist, it must be held that, in the case of the patients of a dentist, the number of persons is not large, indeed it is insignificant, given that the number of persons present in his practice at the same time is, in general, very limited. Moreover, although there are a number of patients in succession, the fact remains that, as those patients attend one at a time, they do not generally hear the same phonograms, or the broadcast phonograms, in particular.

97 Finally, it cannot be disputed that, in a situation such as that in the main proceedings, a dentist who broadcasts phonograms, by way of background music, in the presence of his patients 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. Therefore, such a broadcast is not liable, in itself, to have an impact on the income of that dentist.

98 The patients of a dentist visit a dental practice with the sole objective of receiving treatment, as the broadcasting of phonograms is in no way a part of dental treatment [does it not calm the nerves of the anxious patient?]. They have access to certain phonograms by chance and without any active choice on their part, according to the time of their arrival at the practice and the length of time they wait and the nature of the treatment they undergo. Accordingly, it cannot be presumed that the usual customers of a dentist are receptive as regards the broadcast in question.

99 Consequently such a broadcast is not of a profit-making nature ....".

Merpel notes the bit about the music being "enjoyed" by dental patients "without any active choice on their part".  Perhaps "enjoyed" has a different meaning in Luxembourg to that which she normally ascribes to it ...

Music and dental treatment here and here
Royalty-free music for dentists here
Fear of dentists here
Fear of music here