SCF v Marco Del Corso – opinion of advocate general

In the present case, the parties are in dispute in particular as to whether the principles developed in SGAE ruling, which concerned copyright and hotel bedrooms, can be applied by analogy to the related rights of phonogram producers and performers, where a radio broadcast in which phonograms are used is audible in a dental practice. The referring court wished to know, first of all, whether a dentist who makes radio broadcasts audible in his practice is required to pay equitable remuneration for the indirect communication to the public of phonograms communicated in the radio broadcasts.

In the view of SCF and the French Government, communication to the public must be taken to exist in a case like the present one. First of all, SCF points out that each dentist accounts for a substantial number of patients on average. The public nature of the communication is also not precluded by the fact that the patients have access to the dental practice only by appointment and on a contractual basis. Thirdly, SCF and the French Government argue that the user of the phonogram must be considered to be, not the patients, but the dentist. The fact that communication takes places irrespective of the will of the patient and that the patient may have no interest in the communication is not therefore relevant.

In the Commission’s view, in SGAE the Court merely defined the public aspect of communication, but not the concept of communication. According to recital 23 in the preamble to Directive 2001/29, the concept of communication to the public covers only persons not present at the place where the transmission originates. However, the transmission of a broadcast on a radio in a dental practice takes place before an audience present at the place where the transmission originates. The situation could be different if the signal communicated by means of such a radio was first fed into a network.

Article 3(2)(b) of Directive 2001/29 is not relevant in the present case. Article 3(2)(a) and (b) of Directive 2001/29 is not applicable because that provision regulates only the case of making available to the public, where members of the public may access the phonograms or the representations or performances from a place and at a time individually chosen by them. That is not the case with the transmission of a radio programme. Article 3(1) of Directive 2001/29 is also irrelevant, since the present case does not concern copyright works, but the related rights of phonogram producers and of performers.

Instead, Article 8(2) of Directive 92/100 and Article 8(2) of Directive 2006/115 are relevant. Under those provisions, Member States must ensure that a single equitable remuneration is paid by the user if a phonogram published for commercial purposes, or a reproduction of such phonogram, is used for broadcasting by wireless means or for any communication to the public and ensure that this remuneration is shared between the relevant performers and phonogram producers.

Concept of communication

On the basis of its wording, the concept of communication to the public can be divided into two elements. First of all, there must be communication. Secondly, that communication must be to the public. Communication within the meaning of Article 8(2) of Directive 2006/115 is not expressly defined in that directive. In interpreting the concept of communication in that provision regard must be had to the provisions of Article 12 of the Rome Convention and of Article 15 of the WPPT. Article 15(1) in conjunction with Article 2(g) of the WPPT is particularly relevant to the concept of communication.

Article 15(1) provides that performers and producers of phonograms enjoy the right to a single equitable remuneration for direct or indirect use for broadcasting or for any communication to the public. In Article 2(g) of the WPPT, the concept of communication to the public of a phonogram is defined as communication to the public by any medium, otherwise than by broadcasting, of the sounds or the representations of sounds fixed in a phonogram. It is further provided that it is sufficient for the purposes of communication to the public within the meaning of Article 15 of the WPPT if the sounds fixed in a phonogram are made audible or represented.

First of all, Article 8(2) of Directive 2006/115 covers both direct and indirect communications. This is shown, first, by that provision’s open wording and drafting history. It is clear from the drafting history of Directive 92/100 that it was not considered necessary to clarify further the concept of communication by adding the words ‘direct or indirect’, since through the use of the concept of communication it was evident that indirect communications would also be covered. Secondly, it is sufficient for the purposes of communication if the sounds fixed in the phonogram are made audible. It is irrelevant whether a customer has actually heard the sounds. This is suggested, first, by Article 2(g) of the WPPT, which refers to audibility. Furthermore, according to the spirit and purpose of Directive 2006/115, it would appear to be sufficient if the customer has the legal and practical possibility of enjoying the phonograms.

If these rules are taken into consideration, there is much to suggest that the concept of communication in Article 8(2) of Directive 2006/115 is to be interpreted as meaning that, where a dentist in a case like the present one makes radio broadcasts audible to his patients in his practice by means of a radio, he indirectly communicates the phonograms used in the radio broadcasts. The dentist makes the radio broadcasts audible to his patients himself, and thus indirectly the phonograms used in the radio broadcasts. It must be stated, as an interim conclusion, that where a dentist makes a radio broadcast audible in his practice by means of a radio, he indirectly communicates the phonograms which are used in the radio broadcast for the purposes of Article 8(2) of Directive 2006/115.

The right to make available to the public under Article 3(2) of Directive 2001/29 should be understood as covering all acts of making available to members of the public not present at the place where the act of making available originates. If the place where the act of making available originates also meant the place where the equipment on which the phonograms are ultimately played is located, Article 3(2) of the directive would largely be deprived of its practical effectiveness. In many cases this will be equipment in a private household. Only the audience of the direct performance or representation, as the audience present at the place where the communication originates, is excluded from the concept of communication under Article 3(1) of Directive 2001/29.

In a case like the present one, the place where the communication originates within the meaning of Article 3(1) of Directive 2001/29 is therefore the place where the original performance or representation was recorded on the phonograms.

The existence of communication to the public within the meaning of Article 8(2) of Directive 2006/115 does not depend on an entrance fee being paid. First of all, there is nothing in the wording of Article 8(2) of Directive 2006/115 to indicate such a requirement. Secondly, this view is countered by the schematic connection with Article 8(3) of the directive. That provision establishes an exclusive right for broadcasting organisations to authorise or prohibit the communication to the public of their broadcasts if such communication is made in places accessible to the public against payment of an entrance fee.

The existence of communication to the public does not depend on whether the user pursues a profit-making purpose. The concept of communication to the public does not imply that it is dependent on a profit-making purpose.

The public aspect of communication for the purposes of Article 8(2) of Directive 2006/115 does not require the public to have an autonomous social, economic or legal dimension. Such a dimension is also absent in other cases in which there is undoubtedly a public, such as in railway or underground stations. In addition, in the field of copyright and related rights, the dimension or the homogeneity of the group of persons which may constitute the public is not relevant.

Article 8(2) of Directive 2006/115 is thus to be interpreted as meaning that a dentist who provides a radio in his practice, by which he makes radio broadcasts audible for his patients, is required to pay equitable remuneration for the indirect communication of the phonograms which are used in the radio broadcasts.