BACKGROUND TO THE DISPUTE

Case C-775/21. On March 2019, UCMR – ADA brought an action before the Bucharest Regional Court against the air transport company Blue Air, seeking remuneration still due and penalties for the communication to the public of musical works on board Blue Air’s aircraft without obtaining a licence. Blue Air submitted that, although it has the software needed for broadcasting musical works in 22 of its 28 aircrafts, it communicated to the public only one musical work as background music in 14 of its aircrafts, for which it obtained the necessary licence. On April 2019, the Regional Court upheld the action, stating that the fact that 22 of Blue Air’s aircrafts were equipped with sound systems and software was enough to presume that the musical works in question were played in those aircrafts.

Blue Air decided to appeal to the Bucharest Court of Appeal, which referred to the Court of Justice three questions.

Case C-826/21. On December 2013, UPFR brought an action before the Bucharest Regional Court against CFR, a rail transport company, seeking remuneration still due and penalties for the communication to the public of musical works on board CFR’s passenger carriages. The Regional Court dismissed the action, stating that although the installation of systems which makes the public access to sound recordings technically possible constitutes a communication to the public, it had not been proved that the trains in question had been equipped with those systems.

CFR decided to appeal to the Bucharest Court of Appeal, which referred to the Court of Justice two questions.

DECISION

By this decision cases C‑775/21 and C‑826/21 were joined.

As regards the first question in case C-775/21, the Court of Appeal asks whether- art. 3.1 of Directive 2001/29 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. In that regard, the Court stated that communication to the public must be understood in a broad sense, covering all communication to the public not present at the place where the communication originates and, thus, any transmission or retransmission of a work to the public by wire or wireless means, including broadcasting. Profit-making nature in this case is debatable, however, is not necessarily an essential condition for the existence of a communication to the public. The objective of the Directive is to give a high level of protection to the authors. The public in question consists of all the groups of passengers who took those flights, and such a number of people cannot be regarded as too small, or even as an insignificant number. Therefore, the broadcasting in a means of passenger transport of a musical work as background music by the operator of that means of transport constitutes a clear act of communication.

With respect to the second and third questions in case C-775/21, and the first question in case C-826/21, on whether the mere installation, on board a means of transport, of sound equipment and of software enabling the broadcasting of background music, directly constitutes a communication act within the meaning of arts. 3.1 and 8.2 of Directive 2001/29, the Court of Justice said that it does not. It is just a mere provision of physical facilities for enabling or making a communication, but does not constitute the communication act itself.

Finally, regarding the second question in case C-826/21, the Court of Appeal asks whether Article 8.2 of the Directive 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. In this sense, the Court of Justice stated that art. 3.1 must be interpreted as precluding a Member State from giving wider protection to copyright holders, by including into the concept of communication to the public a wider range of activities than those covered by that provision.

[Case T‑ 726/21, ECLI:EU:T:2023:6, 18/01/2023]