Renting out cars equipped with radio receivers does not constitute a communication to the public

C-753/18

Stim & SAMI

Copyrights: Communication to the public

02 Apr 2020

The matter at hand

Föreningen Svenska Tonsättares Internationella Musikbyrå u.p.a. (“Stim”) and Svenska artisters och musikers intresseorganisation ek. för (“SAMI”) are both Swedish collective rights management organisations. Stim manages copyright in music works and SAMI manages the related rights of performers. Fleetmanager Sweden AB (“Fleetmanager”) and Nordisk Biluthyrning AB (“NB”) are Swedish car rental companies. Both of them offer, either directly or through intermediaries, primarily short term rental cars that are equipped with radio receivers.

Two disputes arose between the parties. In both disputes it was claimed that Fleetmanager and NB were making available copyright protected works by offering rental cars with radio receivers for short-term rent and that this should be considered a communication to the public.

Both the proceedings were brought to the Högsta domstol (Swedish Supreme Court), who referred the proceedings to the ECJ and raised two questions. In essence, the first question was whether the renting out of cars equipped with radio receivers should be regarded as a communication to the public within the meaning of Article 3(1) of 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 and Article 8(2) of Rental and Lending Rights DirectiveDirective 2006/115/EC of the European Parliament and of the Council of 12 December 2006 on rental rights and lending right and on certain rights related to copyright in the field of intellectual property. The second question concerned the significance of the volume of the car rental activities and the duration of the rentals (paragraph 18).

The judgment of the ECJ

With regard to its first question and referring to its well-established case law, the ECJ calls into memory that the concept of ‘communication to the public’ includes two cumulative criteria, namely an ‘act of communication’ of a work and the communication of that work to a ‘public’ (AKM (C‑138/10), Renckhoff (C‑161/17), Nederlands Uitgeversverbond and Groep Algemene Uitgevers (C‑263/18) (paragraph 30)). Furthermore, the ECJ refers to Stichting Brein (C-610/15) and reiterates that an individual assessment, in the light of a number of complementary criteria, which are autonomous and interdependent, is needed.

In addition, the ECJ emphasises the indispensable role played by the user and the deliberate nature of his intervention. With reference to SCF (C‑135/10) the user needs to intervene in order to make an ‘act of communication’. The intervention entails that the user is in full knowledge of the consequences of his action, giving his customers access to a protected work. This applies in particular where in the absence of that intervention, those customers would not be able to enjoy the broadcast work, or would be able to do so only with difficulty.

The ECJ refers to recital 27 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 that “the mere provision of physical facilities for enabling or making a communication does not in itself amount to communication within the meaning of this directive” (paragraph 33). Based on this recital, the ECJ concludes “that is so in the case of 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, as also noted, in essence, by the Advocate General in point 32 of his Opinion” (paragraph 34) and with reference to Reha Training (C‑117/15) the ECJ continues: “this differs from acts of communication by which service providers intentionally broadcast protected works to their clientele, by distributing a signal by means of receivers that they have installed in their establishment” (paragraph 35).

As a consequence of the above, the ECJ holds that, by making available to the public cars that are equipped with radio receivers, car rental companies are not carrying out an ‘act of communication’ to the public of protected works because this does not qualify as a ‘deliberate intervention’.

For the sake of completeness the ECJ notes that private or public criterion of the place where the communication takes place is irrelevant, see SGAE (C-306/05). This cannot be changed by the argument that car rental companies make available to their customers spaces which Stim and SAMI describe as ‘public’. Based on the first answer, the ECJ finally concludes that there is no need to answer the second question.

Commentary

The Advocate-General Szpunar pointed out in his opinion that these questions gave the ECJ the opportunity to somewhat systematize the extensive, albeit necessarily disparate, case-law on the subject of ‘communication to the public’. However, the opportunity to establish a number of general principles in order to make it easier to determine what is and what is not covered by this, has been left out by the ECJ. In absence of argumentation by the ECJ itself, one should rely on the conclusion of Szpunar. After all, the ECJ solely refers to Szpunar's opinion (Judgment, paragraph 34).

Szpunar outlines the established practice in the case-law and makes the distinction between the mere provision of the physical facilities (pursuant to recital 27 Directive 2001/29) and the actual intervention directly concerning the copyright protected work.

In short, additional intervention – in the form of CDs Phonographic Performance Ireland (C-162/10) or a central antenna on the roof of the hotel SGAE (C-306/05) – is necessary to speak of an intervention and therefore a communication to the public. According to Szpunar the radio installed in cars are capable of receiving, without any additional intervention, the terrestrial broadcasting accessible in the area in which they are located (Szpunar, paragraph 39). In this regard, the car rental undertakings do not make any intervention directly concerning the protected works.