The matter at hand
The Portuguese collecting society Sociedade Portuguesa de Autores initiated Court proceedings against a bar owner who played radio through loudspeakers for his customers. The Court of Appeals in Coimbra asked the ECJ to clarify whether the bar owner’s action was a “communication to the public” in the sense of art. 3 of the Copyright DirectiveDirective 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society.
The judgment of the ECJ
The ECJ reiterated that there is a ‘public’ in the sense of art. 3 of the Copyright DirectiveDirective 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society if there is ‘an indeterminate number of potential recipients’. The customers of a bar are a ‘public’ in this sense. Further, the ‘public’ must be a ‘new public’: a public that was not considered by the right holder when authorizing the original ‘communication to the public’. The Court holds that with regard to radio broadcasts right holders only took into account individual persons and relatives (as a ‘public’), but not that the radio was played in bars. The ECJ thus holds that the bar owner’s action was a ‘communication to the public’ in the sense of art. 3 of the Copyright DirectiveDirective 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society.