The case when communication to the public is without intention to make profit

SCF, both within and outside Italy, manages, collects and distributes the royalties of its associated phonogram producers. SCF conducted negotiations with the Association of Italian Dentists with a view to concluding a collective agreement quantifying the relevant equitable remuneration for any ‘communication to the public’ of phonograms, including such communication in private professional practices.

As those negotiations were unsuccessful, on 16 June 2006 SCF brought an action before the Turin district court against Mr Marco Del Corso, seeking a declaration that he was broadcasting, by way of background music, in his private dental practice in Turin phonograms protected by property rights, and that, since it constituted ‘communication to the public’, such activity gave rise to the payment of equitable remuneration.

In his defence, Mr Del Corso argued, among other things, that, in his practice, the music was being broadcast by radio and that SCF could claim copyright only if the medium on which the phonogram had been fixed was used, whereas remuneration for listening to the broadcast was payable not by the listener, but by the radio or television broadcaster. In any event, Mr Del Corso argued that Articles 73 and 73a of the amended Law on copyright were not applicable to the present case, as they referred to communication to the public in public places and on the occasion of any other public use of phonograms. A private dental practice could not be classified as a public place, unlike public health facilities.

The Turin district court held, that in this case there was no communication for profit, the type of music played in the practice did not influence the patients’ choice of dentist, and the situation did not fall within those provided for in Article 73a of the Law on copyright, since the dental practice was private and, as such, could not be equated with a public place or place open to the public, given that the patients were not a random public but were individually identified and could normally attend the practice only if they had an appointment and, in any event, with the dentist’s consent. SCF appealed against that judgment to the Corte d’appello di Torino.

Mr Del Corso has never acknowledged that he was broadcasting protected phonograms to his patients by means of his radio-broadcast receiver in his private dental practice, particularly as such broadcasts were not made in exchange for the payment of an entrance fee by those patients.

As regards, to begin with, the ‘indeterminate’ nature of the public, the Court has observed that, according to the definition of the concept of ‘communication to the public’ given by the WIPO glossary, which it means ‘making a work … perceptible in any appropriate manner to persons in general, that is, not restricted to specific individuals belonging to a private group’. Next, as regards, the criterion of ‘a fairly large number of people’, this is intended to indicate that the concept of public encompasses a certain de minimis threshold, which excludes from the concept groups of persons which are too small, or insignificant. In order to determine that number, the Court took account of the cumulative effects of making works available to potential audiences. In that connection, not only is it relevant to know how many persons have access to the same work at the same time but it is also necessary to know how many of them have access to it in succession.

It must be observed, first, that, as in the cases leading to the judgments in SGAE and Football Association Premier League and Others, although the patients of a dentist are in the area covered by the signal conveying the phonograms, they are able to listen to those phonograms only as a result of the deliberate intervention of that dentist. Therefore such a dentist must be considered to be intervening deliberately in the broadcasting of those phonograms. Next, as regards the patients of a dentist, it must be observed that they generally form a very consistent group of persons and thus constitute a determinate circle of potential recipients, as other people do not, as a rule, have access to treatment by that dentist.

As regards, further, the number of persons to whom the same broadcast phonogram is made audible by the dentist is not large, indeed it is insignificant, given that the number of persons present in his practice at the same time is, in general, very limited. Moreover, although there are a number of patients in succession, the fact remains that, as those patients attend one at a time, they do not generally hear the same phonograms, or the broadcast phonograms, in particular. Finally, a dentist who broadcasts phonograms, by way of background music, in the presence of his patients cannot reasonably either expect a rise in the number of patients because of that broadcast alone or increase the price of the treatment he provides. Therefore, such a broadcast is not liable, in itself, to have an impact on the income of that dentist.

The patients of a dentist visit a dental practice with the sole objective of receiving treatment, as the broadcasting of phonograms is in no way a part of dental treatment. They have access to certain phonograms by chance and without any active choice on their part, according to the time of their arrival at the practice and the length of time they wait and the nature of the treatment they undergo. Consequently such a broadcast is not of a profit-making nature. It follows that the requirement set out in Article 8(2) of Directive 92/100 for the payment of equitable remuneration by the user, namely that the user makes a ‘communication to the public’ within the meaning of that provision, is not met (de).