In its judgement of 20.4.2023 – C-775/21 and C-826/21 – the ECJ once again commented on the concept of communication to the public in the copyright context. According to this, playing background music can be communication to the public and infringe copyrights. However, the installation of hardware and software for playing alone is not sufficient for a corresponding rebuttable presumption. The ECJ is therefore continuing to define the concept of communication to the public.
The ECJ had before it issues arising from two legal disputes between Romanian collecting societies with a French airline (C-775/21) and a Romanian railroad company (C-826/21). Due to the similar issues and facts, the ECJ joined the cases.
Summarized and modified by the ECJ, the questions were whether a communication to the public can be assumed in the broadcasting of musical works as background music in means of passenger transport and whether the installation of equipment and software can already give rise to a rebuttable presumption of communication to the public. The question on the rebuttable presumption stems from the fact that the referring court submits that such a presumption is assumed by some Romanian courts in the case of certain economic activities.
The first question – whether background music constitutes communication to the public – was clearly answered in the affirmative by the ECJ in the case of the airline. In any case, the airline played background music on half of its aircraft on the respective flights. Therefore, the music had been made available to an unlimited number of passengers simultaneously or consecutively. The minimum threshold of persons required for the public had therefore been reached here. These passengers would not have been able to receive the music even if it had not been played by the equipment in the means of transport. Therefore, the operating company would have been fully aware that it was making protected works accessible.
The ECJ thus ruled that playing background music in means of public transport – in this case an airplane – constitutes communication to the public in the meaning of Art. The ECJ thus ruled that playing background music on public transport – in this case an airplane – constitutes communication to the public within the meaning of Art. 3(1) of Directive 2001/29 and can therefore infringe copyrights. The minimum threshold for the assumption of publicity must be observed. This principle is thus likely to be transferable to most means of public transport.
The second question – regarding a presumption of communication to the public on the basis of existing hardware/software – is rejected, however. This follows on the one hand from the answer to the first question. For in this question, the ECJ already discusses that a reproduction must actually be made. This was established in the case of the airline, but not in the case of the railroad company. Without an actual reproduction, such a presumption would contradict the 27th recital of Directive 2001/29. On the other hand, this presumption could also lead to the payment of remuneration to collecting societies being made dependent on the mere existence of the technical means. The latter would lead to a situation in which copyright protection would get out of hand, without taking into account the meaning of the EU directives. And this would be the case without the need for an actual communication to the public.
Therefore, it is sufficient for the assumption of a rebuttable presumption of public communication.