SCF v Marco Del Corso – background proceedings

Società Consortile Fonografici (SCF) is a copyright management society for Italy and abroad. It represents performers and phonogram producers. SCF conducted negotiations with the Associazione Dentisti Italiani (Association of Italian Dentists) with a view to concluding a collective agreement quantifying the relevant equitable remuneration within the meaning of Articles 73 or 73a of the Law on copyright for the communication of phonograms, including distribution in private professional practices whatever the technique used.

As those negotiations were unsuccessful, SCF brought an action before the Tribunale di Torino (Turin District Court) against Dr Del Corso, a dentist, claiming that he was broadcasting protected phonograms as background music in his private dental practice in Turin, and that that activity, inasmuch as it constituted ‘communication to the public’ within the meaning of the Italian Law on copyright, international treaty law and Union law, required the payment of equitable remuneration. The amount of remuneration was to be fixed in subsequent proceedings.

Marco Del Corso claimed that the action should be dismissed. He argued, first, that SCF could claim copyright only if he used the phonograms himself; however, the phonograms were being broadcast on the radio in his private practice. The broadcaster was therefore liable to pay equitable remuneration, but no equitable remuneration was owed for listening to the broadcast. Secondly, there was no communication to the public, since a private dental practice could not be regarded as a public place. Patients could attend the practice only by appointment.

The Tribunale di Torino dismissed the application. It based its ruling on the grounds that there was no communication for profit and that the dental practice was also private, and thus not a public place or a place open to the public. SCF appealed against that judgment to the referring court. Marco Del Corso claimed that the appeal should be dismissed. The Public Prosecutor of the Italian Republic at the referring court intervened in the proceedings, maintaining that the appeal should be dismissed.

The referring court has taken the view that the provisions of international, Union and national law all provide for a right on the part of phonogram producers to receive remuneration for the use of the phonograms they have produced, as a result of their communication to the public. The right to equitable remuneration for further communication to the public is neither excluded by nor encompassed by the equitable remuneration already paid by the broadcaster. While the authorisation issued to a broadcaster presupposes that the broadcast may be privately enjoyed by persons in possession of the technical means of reception, use in a public context, either because it takes place in a public establishment or because it can be enjoyed by a great many people as a result of potential and indiscriminate access, gives rise to an additional use for which separate remuneration must be paid.

The question arose, however, whether the concept of communication to the public of phonograms also includes their transmission within private professional practices, such as dental practices, which patients generally attend by prior appointment and in which the radio programme is played irrespective of the will of the patient.