Broadcasting background music on planes can be a copyright issue according to the EU Court

The European Court has ruled in joined cases C‑775/21 и C‑826/21, Blue Air Aviation SA v UCMR — ADA Asociaţia pentru Drepturi de Autor a Compozitorilor.

These disputes concern whether broadcasting music in planes and trains can constitute communication to the public from a copyright point of view. The cases have the following background:

Case C‑775/21

The UCMR — ADA is a collective management organisation which handles music copyright.

On 2 March 2018, that body brought an action before the Regional Court, Bucharest, Romania against the air transport company Blue Air, seeking payment of remuneration still due and of penalties for the communication to the public of musical works on board aircraft operated by Blue Air, for which Blue Air had not obtained a licence.

Before that court, Blue Air submitted that it operates 28 aircraft and that, although it has the software necessary for the broadcasting of musical works in 22 of those 28 aircraft, it communicated to the public, after obtaining the required licence, only one musical work as background music, in 14 of those aircraft.

Following those clarifications, the UCMR — ADA expanded its requests for payment, taking the view that the existence of sound systems in approximately 22 aircraft justified the conclusion that protected works had been communicated to the public in all of the aircraft of Blue Air’s fleet.

By judgment of 8 April 2019, the UCMR — ADA’s action was upheld. In essence, the Regional Court, Bucharest held, on the basis of the judgments of 7 December 2006, SGAE (C‑306/05, EU:C:2006:764), and of 15 March 2012, Phonographic Performance (Ireland) (C‑162/10, EU:C:2012:141), that the fact that Blue Air equipped the means of transport operated by it with devices enabling the communication to the public of musical works as background music gave rise to a rebuttable presumption that those works were used; this required it to be held that any aircraft equipped with a sound system uses that device for the communication of the musical work in question to the public, without any further proof being necessary in that regard.

Blue Air appealed against that decision to the Court of Appeal, Bucharest, Romania, which is the referring court, submitting, inter alia, that it had not communicated background music on board the aircraft it operates for which no licence had been obtained, and that the mere existence of physical facilities did not amount to a communication to the public of musical works. It added that, through the broadcasting of background music, it was not pursuing any profit motive. Lastly, it stated that the existence of sound systems in aircraft is dictated by safety reasons, in order to enable communication between members of the air crew and communication between that crew and the passengers.

The referring court states that the question whether, given the absence of a profit-making objective, the communication of a musical work as background music constitutes a communication to the public within the meaning of Article 3 of Directive 2001/29, is not without uncertainty. Furthermore, if that question is answered in the affirmative, the referring court raises the question of the standard of proof required in that regard. It notes that, in accordance with the case-law of certain national courts, where an establishment carrying out a particular economic activity is cited in the methodology referred to in paragraph 23 of the present judgment, there is a rebuttable presumption that works protected by copyright are communicated to the public in that place. Such a presumption would be justified, in particular, by the fact that it is impossible for collective management organisations handling copyright systematically to monitor all the places where acts of use of works of intellectual creation could take place.

In those circumstances the Court of Appeal, Bucharest decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1) Must Article 3(1) of Directive 2001/29/EC … be interpreted as meaning that the broadcasting, inside a commercial aircraft occupied by passengers, of a musical work or a fragment of a musical work on take-off, on landing or at any time during a flight, via the aircraft’s public address system, constitutes a communication to the public within the meaning of that provision, particularly (but not exclusively) in the light of the criterion relating to the profit-making objective of the communication?

If the answer to the first question is in the affirmative:

(2) Does the existence on board the aircraft of an address system required by air traffic safety legislation constitute a sufficient basis for making a rebuttable presumption as to the communication to the public of musical works on board that aircraft?

If the answer to that question is in the negative:

(3) Does the presence on board the aircraft of an address system required by air traffic safety legislation and of software which enables the communication of phonograms (containing protected musical works) via that system constitute a sufficient basis for making a rebuttable presumption as to the communication to the public of musical works on board that aircraft?’

Case C‑826/21

The UPFR is a collective management organisation handling the related rights of phonogram producers.

On 2 December 2013, that body brought an action against the CFR, a rail transport company, seeking payment of remuneration still due and of penalties for the communication to the public of musical works on board passenger carriages operated by the CFR. It maintained, in that context, that the applicable railway legislation required some of the trains operated by the CFR to be equipped with sound systems and argued that the presence of such systems amounted to communication to the public of works within the meaning of Article 3(1) of Directive 2001/29.

That action was dismissed by the Regional Court, Bucharest, which held that while the mere installation of a sound system which makes public access to sound recordings technically possible constitutes a communication to the public of musical works, it had not been proved that the trains in service had been equipped with such a system.

The UPFR brought an appeal against that decision before the Curtea de Apel Bucureşti (Court of Appeal, Bucharest), which is the referring court.

The referring court notes that, in national case-law, it is the majority view, inter alia on the basis of the judgment of 7 December 2006, SGAE (C‑306/05, EU:C:2006:764), that the presence of sound systems in a train carriage amounts to a communication to the public of musical works. However, the referring court is uncertain in that regard.

In those circumstances the Court of Appeal, Bucharest decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1) Does a rail carrier which uses train carriages in which sound systems intended for the communication of information to passengers are installed thereby make a communication to the public within the meaning of Article 3 of Directive 2001/29/EC …?

(2) Does Article 3 of Directive 2001/29/EC … preclude national legislation which establishes a rebuttable presumption of communication to the public on the basis of the existence of sound systems, where those sound systems are required by other provisions of law governing the carrier’s activity?’

The Court’s decision:

1. Article 3(1) of Directive 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

must be interpreted as meaning that the broadcasting, in a means of passenger transport, of a musical work as background music constitutes a communication to the public within the meaning of that provision.

1. Article 3(1) of Directive 2001/29 and Article 8(2) of Directive 2006/115/EC of the European Parliament and of the Council of 12 December 2006 on rental right and lending right and on certain rights related to copyright in the field of intellectual property

must be interpreted as meaning that the installation, on board a means of transport, of sound equipment, and, where appropriate, of software enabling the broadcasting of background music, does not constitute a communication to the public within the meaning of those provisions.

1. Article 8(2) of Directive 2006/115

must be interpreted as precluding national legislation, as interpreted by the national courts, which establishes a rebuttable presumption that musical works are communicated to the public because of the presence of sound systems in means of transport.