Hotels are public; dentist waiting rooms are not.

Today, the ECJ (I am too old to call it the CJEU) handed down its decisions in two copyright cases.   In the first, Public Performance (Ireland) v Ireland, Attorney General (C-162/10), a reference from the Irish High Court, we learned that communications by hotels to hotel bedrooms are communications to the public - although we didn't really learn that as it had already been decided in the SGAE/Rafael Hoteles case.  We also learned that the ECJ did not think that Ireland was acting consistently with the Rental and Lending Directive Article 8(2) in exempting hotels from the right to equitable remuneration for the communication of sound recordings to the public.  The findings read:   

1.      A hotel operator which provides in guest bedrooms televisions and/or radios to which it distributes a broadcast signal is a ‘user’ making a ‘communication to the public’ of a phonogram which may be played in a broadcast for the purposes of Article 8(2) of Directive 2006/115 ...on rental right and lending right and on certain rights related to copyright in the field of intellectual property. 

2.      A hotel operator which provides in guest bedrooms televisions and/or radios to which it distributes a broadcast signal is obliged to pay equitable remuneration under Article 8(2) of Directive 2006/115 for the broadcast of a phonogram, in addition to that paid by the broadcaster. 

3.      A hotel operator which provides in guest bedrooms, not televisions and/or radios to which it distributes a broadcast signal, but other apparatus and phonograms in physical or digital form which may be played on or heard from such apparatus, is a ‘user’ making a ‘communication to the public’ of a phonogram within the meaning of Article 8(2) of Directive 2006/115 ... It is therefore obliged to pay ‘equitable remuneration’ under that provision for the transmission of those phonograms. 

4.      Article 10(1)(a) of Directive 2006/115, which provides for a limitation to the right to equitable remuneration provided for by Article 8(2) of that directive in the case of ‘private use’, does not allow Member States to exempt a hotel operator which makes a ‘communication to the public’ of a phonogram, within the meaning of Article 8(2) of that directive, from the obligation to pay such remuneration. 

In the second, SCF v Marco Del Corso (C-135/10), a reference from the Court of Appeal in Turin, the ECJ found that the playing of phonograms in dental surgeries was not such as to trigger the remuneration right, because it did not constitute a communication to the public for the purposes of the same equitable remuneration right.  It appears that the court found that the small number of people in the dentist waiting room at any one time, coupled with the fact that the clients could not choose which records they listened to and that the playing of records had no economic impact for the dentists concerned.  On first blush, it appears that this judgement may have significant adverse consequences for the public performance income of collecting societies across Europe.  However, ECJ judgements often don't have quite the far reaching effects as first appears.   The court also unsurprisingly found that the Rome Convention and TRIPS do not have direct effect.   The wording of the second judgement is:

1.      The provisions of the Agreement on Trade-Related Aspects of Intellectual Property Rights, ... approved by Council Decision 94/800 ...concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the agreements reached in the Uruguay Round multilateral negotiations (1986-1994) and of the World Intellectual Property Organisation (WIPO) Performances and Phonograms Treaty ... are applicable in the legal order of the European Union. As the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations ... does not form part of the legal order of the European Union it is not applicable there; however, it has indirect effects within the European Union. Individuals may not rely directly either on that convention or on the agreement or the treaty mentioned above. The concept of ‘communication to the public’ which appears in Council Directive 92/100 ... on rental right and lending right and on certain rights related to copyright in the field of intellectual property and Directive 2001/29 ... on the harmonisation of certain aspects of copyright and related rights in the information society must be interpreted in the light of the equivalent concepts contained in the convention, the agreement and the treaty mentioned above and in such a way that it is compatible with those agreements, taking account of the context in which those concepts are found and the purpose of the relevant provisions of the agreements as regards intellectual property.  

2.      The concept of ‘communication to the public’ for the purposes of Article 8(2) of Directive 92/100 must be interpreted as meaning that it does not cover the broadcasting, free of charge, of phonograms within private dental practices engaged in professional economic activity, such as the one at issue in the main proceedings, for the benefit of patients of those practices and enjoyed by them without any active choice on their part. Therefore such an act of transmission does not entitle the phonogram producers to the payment of remuneration.