CJEU rules that broadcasting music on a plane or train is a communication to the public, but installing relevant equipment isn’t

Is it an act of communication to the public under Article 3 of the InfoSoc Directive to broadcast music on board of a train or a plane? And what about installing equipment allowing the subsequent broadcasting of music?

After hotel rooms, spas, rehabs, dentist waiting rooms, and rental cars, yesterday it was time for the Court of Justice of the European Union (CJEU) to answer these vexed questions with reference to such transport means.

It did so in joined cases C‑775/21 and C‑826/21, Blue Air and UPFR. Both were referrals from the Bucharest Court of Appeal and were made in separate proceedings (if my analysis is correct, they are the only two referrals, besides C-283/10, ever made in the copyright field by a Romanian court). The former, Blue Air, concerned planes while the latter, UPFR, related to trains.

The CJEU answered in the affirmative the question about broadcasting of music but – very significantly – responded in the negative the one about installation of equipment (and related software). The decision was not preceded by any Advocate General (AG) Opinion.

In drawing a distinction between broadcasting copyright or other protected content (an act of communication to the public) and the mere provision of physical facilities for the subsequent broadcasting activities (not a communication to the public, in accordance with recital 27 in the preamble to the InfoSoc Directive), the CJEU held that a train or a plane is more like a dentist waiting room than a hotel room, spa or rehab: the installation of facilities for the subsequent broadcasting of protected content on trains or planes is not an act of communication to the public.

Let’s see in greater detail what happened.

Background

In both cases, the disputes eventually resulting in legal proceedings and, subsequently, referrals to the CJEU were initiated by collective management organizations (CMOs) that submitted that the existence of sound systems within – respectively – Blue Air’s aircrafts and CFR’s trains – would entail the performance of acts of communication to the public and, therefore, the payment of relevant licensing fees by the relevant transport operators.

At first instance, the CMOs’ respective claims were upheld in relation to planes, but not having regard to trains. Appeals followed in both cases and the Court of Appeal of Bucharest made two separate referrals to the CJEU.

As detailed, the CJEU joined the referrals.

The judgment

Whether the broadcasting of copyright or other protected content within a public transport means is a communication to the public

As stated, the CJEU answered this question in the affirmative.

While this answer is not surprising, it should be recalled that, over time, the Court has stressed the need for an individual assessment and considered that not all places are to be treated alike. Famously, the CJEU has held that dentist waiting rooms are not the same as hotel rooms, rehabs or spas, Article 3-wise.

Having reiterated the (now) usual points about the right of communication to the public (preventive character, broad interpretation, case-by-case assessment, indispensable role of the user, etc), as well as the fact that an act of communication to the public requires (1) an act of communication to … (2) a public 😌, the Court concluded that (para 53):

it is clear that the broadcasting in a means of passenger transport of a musical work as background music by the operator of that means of transport constitutes an act of communication for the purposes of Article 3(1) of Directive 2001/29 since, in so doing, that operator intervenes, in full knowledge of the consequences of its conduct, to give its customers access to a protected work, in particular where, in the absence of that intervention, those customers would not, in principle, be able to enjoy the broadcast work.

Importantly (and here the reference appears to have been to the dentist waiting room case, SCF), the CJEU stressed that the existence or not of a profit-making intention on the side of the user is not decisive or a “prerequisite” (as the Court referred to it: para 56), to determine that in fact an act of communication to the public has been performed.

Whether the installation of facilities (sound equipment and enabling software) for the subsequent undertaking of acts of communication to the public on board a means of transport is a communication to the public

Here, the Court answered in the affirmative in principle, drawing the usual distinction between the mere provision of physical facilities and the installation thereof. While the former does not trigger the application of Article 3, the latter does. Nevertheless, having regard to the specific scenarios at hand, the Court considered that (para 71):

the mere installation of sound equipment in a means of transport cannot be comparable to acts by which service providers intentionally transmit protected works to their customers by distributing a signal by means of receivers which they have installed in their establishment, allowing access to such works.

Whether Article 8(2) of the Rental and Lending Rights Directive precludes national legislation establishing a rebuttable presumption that musical works are communicated to the public because of the presence of sound systems in means of transport

This final part related specifically to the compatibility of Romanian law with EU law. The CJEU answered the question considering that, if it is not a communication to the public to install sound equipment on board a means of transport, a Member State cannot provide for a presumption like the one under Romanian law.

Comment

What is the place and broader relevance of yesterday’s judgment insofar as the construction of the right of communication to the public under EU copyright is concerned? There seems to be little doubt that the answer to the second question, that is the one concerning the installation of facilities for the performance of subsequent acts of communication, is the most significant aspect and warrants closer scrutiny.

Kats also like to travel by train ...

In line with the joint declaration concerning Article 8 of the WIPO Copyright Treaty, recital 27 of the InfoSoc Directive states that the mere provision of physical facilities does not amount to an act of communication to the public. The installation of such facilities may nevertheless make access to copyright works to the public technically possible and, thus, fall within the scope of Article 3(1) of the InfoSoc Directive. This is so because, as the CJEU clarified as early as SGAE, it entails an additional intervention on the side of the user.

Over the past few years, recital 27 has been the subject of renewed attention. Yesterday’s decision is no exception.

For example, in Stim and SAMI [IPKat here] the CJEU ruled out that the operator of a rental car service, whose cars have radios installed therein by the relevant car manufacturers, would be in itself undertaking acts of communication to the public. This is so on consideration that the supply of a radio receiver forming an integral part of a hired motor vehicle, which makes it possible to receive – without any additional intervention by the leasing company – the terrestrial radio broadcasts available in the area in which the vehicle is located, is a mere provision of physical facilities.

In his Opinion in YouTube [IPKat here] AG Saugmandsgaard Øe considered that the operators of YouTube and cyberlocker Uploaded would merely provide physical facilities, which enable users of their platforms to carry out a communication to the public. As such, they would not be in themselves falling within the scope of application of Article 3(1) of the InfoSoc Directive. In the resulting judgment [IPKat here], the Court disagreed with the applicability of recital 27 to the factual scenarios at issue and considered necessary, instead, to consider the several different criteria also referred to by the CJEU in the Blue Air and UPFR judgment to determine whether liability for unauthorized acts of communication to the public would in fact subsist.

The approach taken by the CJEU yesterday is rather surprising to me and goes astray from the consolidated approach of the Court over the years: essentially, the Court resolved the cases – in the sense of suggesting the non-liability (which will be nevertheless for the referring court to assess in concreto) of the plane and train operators – by adopting what appears to me like a broad reading of recital 27. It would have been more appropriate to rule out the application of recital 27 tout court (reasoning in line with the consolidated approach since SGAE) and focus instead in greater detail on whether, consistently with the individual assessment mandated under Article 3, an act of communication to the public would be in fact undertaken. I believe that liability might have been eventually ruled out simply by undertaking a more rigorous assessment of whether, given the circumstances at hand, a profit-making intention underlying the playing of music on a plane or train would in fact subsist.

... and plane,
with some being also known to aircrews

May all this signal a new approach to the understanding and construction of the right of communication to the public going forward? Time will tell.

In the meantime, it is significant that yesterday’s ruling had a different Judge-Rapporteur than most of the communication to the public cases and was assigned to a different chamber of the CJEU than the “usual” one. 

As I discuss in Copyright and the Court of Justice of the European Union – the second edition of which will be released in the early Autumn 2023 – a decisive role in the construction of CJEU copyright architecture is to be attributed to the fact that, although the Court does not formally have specialist sections for specific areas or specialist copyright expertise, as a matter of fact a very clear specialization may be discerned over time. This has been possible both through the appointment, each time, of a Judge-Rapporteur and an AG from a narrow pool. Just to give some numbers, Jiří Malenovský and Marko Ilešič were appointed Judges-Rapporteur in over 60% of all the copyright referrals for a preliminary ruling so far.