Hiring out cars with installed radios does not amount to “communication to the public”
The CJEU has published another decision regarding whether a certain service constitutes communication to the public in copyright terms, meaning that right holders need to be remunerated. In the past, the Court has already ruled that broadcasting a football match in a pub (FAPL v. QC Leisure, C‑403/08 and C‑429/08), installation of television sets for patients in a rehabilitation centre (Reha Training v. GEMA, C‑117/15) and installation of televisions and/or radios in hotel rooms (Phonographic Performance, C‑162/10) constitutes communication to the public, whereas playing phonograms on the radio in a dental practice (SCF v. Del Corso, C‑135/10) does not. This time the Court in the case of Stim and SAMI v. Fleetmanager (C-753/18) decided on the service of renting out cars equipped with radio receivers.
The subject of the said judgement was the interpretation of Art. 3 of the Directive 2001/29 providing for a right of communication to the public and right of making available to the public, and Art. 8 of the Directive 2006/115, according to which the user of a phonogram that has been communicated to the public needs to pay fair remuneration to the phonogram producer. The key question is thus, whether the act constitutes communication to the public, for which the CJEU has developed two criteria, namely that the act is an “act of communication” and that the work has been communicated to the “public”.
In relation to the first criterion, the CJEU relied on recital 27 of the Directive 2001/29, which provides that the mere provision of physical facilities for enabling or making a communication does not in itself amount to communication. According to the Court, this extends also to the supply of a radio receiver, integrated into a 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. Since the first criterion is not met, the Court did not deal with the second one and has ruled that there is no communication to the public.
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