The matter at hand
In this case, the ECJ examined two joined cases involving the question whether background music broadcasted in trains and aircrafts constitute a communication to the public under 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 and whether the mere installation of sound equipment or related software qualifies as such.
In case C-775/21, UCMR, a collective management organisation which handles the music copyright in Romania, filed a lawsuit against the Blue Air before the Tribunalul Bucuresti (Regional Court of Bucharest, Romania). UCMR sought renumeration for, among other things, the broadcasting of copyright protected works on board of aircrafts for which Blue Air did not obtain the proper licence. Blue Air argued that although they had the necessary software for broadcasting music on 22 out of their 28 aircrafts, they only broadcasted background music on 14 of those aircrafts. In addition, it was not pursuing any profit motive and the existence of sound systems was dedicated by safety reasons. The Regional Court ruled in favour of UCMR, stating that the presence of devices enabling the communication of works, created a rebuttable presumption that those works were used publicly. Blue Air appealed the decision to the Curtea de Apel Bucureşti (Court of Appeal in Bucharest), which lead to the fact that the Court of Appeal referred questions to the ECJ. In essence, it asked whether the mere presence of sound equipment on board of an aircraft, which is required by air traffic safety legislation, is enough to establish a rebuttable presumption as to the communication to the public.
In case C-826/21, a similar situation occurred, only this time with regard to trains instead of aircrafts. In this case, UPFR (another collective management organization which handles the related rights of phonogram producers) filed a lawsuit against CFR, a rail transport company, and sought payment of the communication of protected works on passenger carriages operated by the CFR. The UPFR argued that the mere presence of sound systems on certain CFR trains constituted a communication to the public under Article 3(1) 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. However, this action was dismissed by the Regional Court. UPFR appealed, and the Court of Appeal referred questions to the ECJ, among other things, to ask whether a rail carrier that utilizes train carriages equipped with sound systems, intended for the communication of information to passengers, constitute a "communication to the public" within the meaning 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 states that the concept of ‘communication to the public’ must be interpreted in a broad sense, “covering all communication to the public not present at the place where communication originates, any such transmission or retransmission of a work to the public by wire or wireless means, including broadcasting” (paragraph 46). The ECJ considers that a communication to the public requires two criteria: i) an act of communication and ii) communication to a public (Youtube and Cyando (C-682/18 and C-683/18). The assessment should consider various complementary criteria, such as the role of the user and the profit-making nature of the communication. In this case, the broadcasting of background music in passenger transport meets these criteria and, therefore, constitutes a communication to the public: “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” (paragraph 53).
In respect of the second question, the ECJ states that the mere installation of sound equipment or related software on board a means of transport does not qualify as a communication to the public under Article 3(1) 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 and Article 8(2) of the 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 mere installation “cannot be comparable to acts to 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” (paragraph 71).
Lastly, the ECJ addresses the question of whether national legislation, as interpreted by national courts, can establish a rebuttable presumption of communication to the public based on the presence of sound systems in means of transport. The ECJ emphasizes that national legislation cannot provide wider protection than set out in the relevant Directives. It concludes that national legislation establishing such presumption, which may lead to remuneration without an actual act of communication to the public, is precluded by Article 8(2) of the 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.