The right of communication to the public is a cornerstone for rightsholders in the digital age. Almost all use cases of copyright protected material online touch on the right of communication to the public. That is why many questions revolving around such uses – from fundamental questions of copyright liability for online content, over the admissibility of hyperlinking and framing to “resale” of used eBooks – hinge on the answers to seemingly simple questions: what is an act of communication to the public (and what isn’t) and who performs such acts (and who doesn’t)?
The CJEU has analyzed these issues in numerous cases already (involving both “analogue” and “digital” scenarios), but – due to an approach focused on the individual cases – open questions remain. On 20 April 2023 the CJEU has added another piece to the existing mosaic of case law in joined cases C-775/21 and C-826/21. Its decision is a reasonable solution to the individual cases. However, as the CJEU arrived at diverging results in (seemingly?) similar cases in the past, the decision is a good occasion to revisit the general standards it applies.
I. The CJEU decision (C-775/21 and C-826/21)
In the two (quite “analogue”) cases underlying the recent CJEU decision, two Romanian collective management organisations claimed payment from a Romanian airline (Blue Air, C-775/21) and railway company (SNTFC, C-826/21) for the public communication of musical pieces through loudspeaker systems on board of their planes/trains. Both Blue Air’s planes and SNTFC’s trains were equipped with loudspeaker systems (although it remained unclear whether SNTFC’s systems were suitable to play phonograms). Blue Air submitted that the loudspeaker systems were necessary for security reasons and that they were only used to play a single (licensed) musical piece as background music (without following a commercial purpose). In the case of SNTFC it wasn’t clear whether the systems were used to play music at all.
The questions presented to the CJEU may be briefly summarised as follows:
- Is playing a musical piece (or parts thereof) on a commercial airline flight over a loudspeaker system a communication to the public, also in view of its (questionable) commercial purpose?
- Is maintaining a loudspeaker system which can play music/phonograms already a communication to the public (or does it at least constitute a presumption of communication to the public)?
The CJEU held that playing a piece of music on a commercial airline flight constitutes a communication to the public because the airline knowingly and willingly provided its customers (a non-negligible number of people) access to the work in question. The (potential) lack of a commercial purpose did not lead to a different result, since such purpose – while not irrelevant – is not decisive for a communication to the public.
It further held that the existence of the loudspeaker system as such does not constitute a communication to the public (or a presumption in that regard) because recital 27 of the Infosoc-Directive (2001/29/EC) expressly provides that “[t]he mere provision of physical facilities for enabling or making a communication does not in itself amount to communication within the meaning of this Directive”.
II. Rental cars, hotels, rehab centres, and dentists: what is the general standard?
As clear and reasonable (and arguably even obvious) this decision may seem, a look at earlier CJEU decisions shows that even relatively small differences in the underlying facts may lead to entirely different outcomes.
1. Prior CJEU caselaw: same but different?
The new CJEU decision seems to be in line with earlier rulings where the CJEU held that:
- the operation of TV sets in the waiting areas of a rehabilitation centre is a communication to the public (CJEU, Decision of 31 May 2016, C-117/15); and
- the mere existence of radios in rental cars does not mean that a rental car company performs an act of communication to the public (CJEU, Decision of 2 April 2020, C-753/18).
However, other decisions in similar cases appear to blur this clear picture and may ultimately be the reason why the cases Blue Air and SNTFC were referred to the CJEU in the first place. In particular, the CJEU has also ruled that:
- hotel operators which equip guest bedrooms with TV sets and radios to which they distribute broadcasting signals do perform a communication to the public (CJEU Decision of 7 December 2006, C-306/05 and Decision of 15 March 2012, C-162/10) and;
- a dentist who plays radio programmes (including music) as background music in his dental practice does not perform an act of communication to the public (CJEU, Decision of 15 March 2012, C-135/10).
2. Individual assessment vs. general guidelines
What distinguishes a radio in a hotel guest room from a radio in a rental car? Is a running TV set in a rehab centre's waiting area different from a radio playing in a dentist’s private practice? Or in other words: are the CJEU decisions contradictory or are they the result of general standards applied to the cases?
a) The CJEU’s individual assessment
From the outset, it must be considered that the CJEU has not developed a uniform definition of what is a communication to the public. Instead, it repeatedly emphasised that the determination “requires an individual assessment” and made clear that, “for the purposes of such an assessment, account has to be taken of several complementary criteria, which are not autonomous and are interdependent. Consequently, they must be applied individually and in their interaction with one another, given that they may, in different situations, be present to widely varying degrees” (CJEU, Decisions of 15 March 2012, C-135/10 and C-162/10). This approach allows the CJEU to provide quite differentiated answers for different situations of use. This comes, however, at the price of a reduced foreseeability of decisions and less legal certainty for copyright users.
b) General standards
The CJEU has relied on a toolbox of different criteria to determine when an act is a communication to the public and who is the “user” (i.e. responsible for the communication):
- As a starting point, the CJEU has frequently emphasised the central role of the (potential) “user”: users make an act of communication when they intervene, in full knowledge of the consequences of their action, to give access to a protected work to third parties, and do so, in particular, where, in the absence of that intervention, these third parties would not be able to enjoy the work. In other words: they willingly and knowingly enable others to access the works.
- The CJEU has repeatedly held that communication to the public means to make a work perceptible in any appropriate manner to persons in general, that is, not restricted to specific individuals belonging to a private group. In this context, it found that communication to the public requires a group which is not too small or insignificant. However, even where a small group is concerned, the CJEU will still assume a communication to the public if enough people are enabled to access the work in succession.
- A communication to the public further requires that the work is communicated using a new technical procedure and/or to an audience which is different from the audience originally envisioned by the rightsholder. This aspect has not been of equal importance in all decisions but was, for instance, often decisive in cases concerning the question whether hyperlinking and framing was permissible.
- While the CJEU has often held that it is “not irrelevant” whether a communication is for profit or not, this criterion is generally not considered decisive. It is questionable whether it should play a role at all, given that – usually – the commercial character of a use under copyright law only influences the permissibility of a use (not the question whether a work is used in the first place).
In addition, the CJEU has frequently considered further aspects to determine whether these criteria were met. For instance, it considered whether technical measures were circumvented to enable hyperlinking (CJEU, Decision of 9 March 2021, C-392/19) or whether a hosting provider took appropriate technological measures that can be expected from a reasonably diligent operator in its situation in order to counter credibly and effectively copyright infringements (CJEU, Decision of 22 June 2021, C-682/18). Clearly, the CJEU aims to retain the flexibility to develop additional criteria in future cases if it deems that necessary.
III. What does this mean in practice?
While an element of uncertainty regarding future decisions remain, the analysis of existing CJEU caselaw leads to a few conclusions which may increase the predictability of decisions.
From a practical perspective, it makes sense to distinguish between a direct and indirect role of the (potential) user:
If users directly control the act of communication to a sufficiently large new audience (or several smaller new audiences in succession) willingly and knowingly – as in the new CJEU decision concerning Blue Air and SNTCF, as well as in the older cases concerning a rehab centre or dentist – they will generally be liable for an own act of communication to the public. Likely, the CJEU came to a different conclusion regarding the dentist practice (CJEU, Decision of 15 March 2012, C-135/10) mainly because the audience was too small and because different patients would not hear the same work of music in succession.
The CJEU does not expressly limit the application of additional criteria to cases where the user only has indirect control over an act of communication directly performed by a third party. However, the additional factors usually become much more relevant here. In such cases, the CJEU will primarily consider whether users enable/promote the communication to the public beyond simply providing “physical facilities” in the meaning of recital 27 Infosoc-Directive. The more active users support the third-party activities, the more they encourage such exploitation and the more aware they are of an illegal exploitation of copyrighted material the more likely the CJEU will assume an act of communication to the public by them.
Such analysis is, ultimately, the reason why radios in rental cars (CJEU, Decision of 2 April 2020, C-753/18) were treated differently from TVs and radios in hotel rooms (CJEU Decision of 7 December 2006, C-306/05 and Decision of 15 March 2012, C-162/10): while the radios in rental cars relied on their built-in antennas, the hotel operators re-transmitted the broadcasting signals within the hotels (and therefore did more than just offering the necessary facilities). Had the hotel operators not retransmitted the signal (but used TVs and radios with own antennas) this would – consequently – not have amounted to a communication to the public (c.f. German Federal Court of Justice, Decision of 18 June 2020, I ZR 171/19).
