What means communication to the public in Directive 2001/29?

Between May 2004 and September 2007, Globus Circus, in its capacity as organiser of circus and cabaret performances, publicly disseminated musical works for commercial purposes without obtaining a ‘non-exclusive’ licence from UCMR – ADA (collective management organisation which handles music copyright) and without paying the appropriate copyright fees. On the view that Globus Circus had infringed its rights, UCMR – ADA brought proceedings before Tribunalul Bucureşti (District Court of Bucharest).

In support of its action, it argued that, under the Copyright Law, exercise of the right to communicate musical works to the public is subject to compulsory collective management.  Globus Circus responded that it had entered into contracts with the authors of the musical works used in the performances which it had organised, under which copyright had been waived, and that it had paid those authors an appropriate fee in return for using their works. As the copyright holders had opted for individual management of their rights in accordance with Article 123(1) of the Copyright Law, there was no legal basis for the claim for payment made by the collective management organisation.

Civil Section IV of Tribunalul Bucureşti upheld the action in part, ordering Globus Circus to pay the sums due for the communication of musical works to the public for commercial purposes between May 2004 and September 2007, together with the corresponding late payment penalties. Globus Circus’ appeal against that decision was dismissed by Curtea de Apel Bucureşti (Court of Appeal of Bucharest).

Both at first instance and on appeal, it was held that Article 123a(1)(e) of the Copyright Law expressly provides that the exercise of the right to communicate musical works to the public must be managed collectively. Accordingly, Globus Circus was required to pay UCMR – ADA the fee calculated according to the methodology negotiated by the collective management organisation, no account being taken of the contracts which Globus Circus had entered into with the authors for the various performances organised between 2004 and 2007.

Globus Circus then brought an appeal against the decision of Curtea de Apel Bucureşti before Înalta Curte de Casaţie şi Justiţie (the Supreme Court of Cassation and Justice) in the context of which it argued, inter alia, that Directive 2001/29 had been incorrectly transposed into Romanian national law. The collective management organisation was placing itself between the authors of musical works and the organisers of performances, with the result that the author was paying the commission charged by that collective management organisation and the user was making a double payment since, even if it paid the copyright fees, it was obliged to pay them again through the collective management organisation.

In its order for reference, the national court points out that, even if the author of the musical works used is not a member of the collective management organisation, the user is obliged to obtain a non-exclusive licence and to pay the collective management organisation a fee, in accordance with Article 123a(2) of the Copyright Law, which provides that, in respect of the categories of rights listed in Article 123a(1), collective management organisations also represent copyright holders who have not commissioned them to do so. Moreover, there is no provision in that Law enabling those copyright holders to exclude their works from collective management.

The national court concludes from this that such legislation seems to impose too harsh a limitation on contractual freedom and is not consistent with the dual objective pursued by means of the compulsory collective management of the right of communicating musical works to the public, which is both to enable works to be used and to ensure that the authors receive payment in return.

In that context, the national court asks in particular whether such collective management is consistent not only with the aim of protecting copyright, but also with the aim of Directive 2001/29, which seeks to maintain a fair balance between the rights of copyright holders and those of users. In those circumstances, Înalta Curte de Casaţie şi Justiţie decided to stay proceedings and to refer the following questions to the European Court for a preliminary ruling:

‘1. Is Article 3(1) of Directive 2001/29 … to be interpreted to the effect that “communication to the public” means:

(a) exclusively communication to the public where the public is not present at the place where the communication originates; or

(b) also any other communication of a work which is carried out directly in a place open to the public using any means of public performance or direct presentation of the work?

2. In the event that, in answer to Question 1, point (a) represents the correct meaning, does that mean that the acts, referred to in point (b), by which works are communicated directly to the public do not fall within the scope of that directive or that they do not constitute communication of a work to the public, but rather the public performance of a work, within the meaning of Article 11(1)(i) of the Berne Convention?

3. In the event that, in answer to Question 1, point (b) represents the correct meaning, does Article 3(1) of [Directive 2001/29] permit Member States to make statutory provision for the compulsory collective management of the right to communicate musical works to the public, irrespective of the means of communication used, even though that right can be and is managed individually by authors, no provision being made for authors to be able to exclude their works from collective management?’

By Questions 1 and 2, which should be examined together, the national court asks, in essence, whether Directive 2001/29 and, more specifically, Article 3(1) thereof, are to be interpreted as referring only to communication to a public which is not present at the place where the communication originates or also to any communication of a work which is carried out directly in a place open to the public using any means of public performance or direct presentation of the work. It must be pointed out that neither Article 3(1) of Directive 2001/29 nor any other provision of that directive defines the concept of ‘communication to the public’.

First, regarding the context, it should be noted that the second sentence of recital 23 to Directive 2001/29 states that the right of communication to the public ‘should be understood in a broad sense covering all communication to the public not present at the place where the communication originates’.

However, in a situation such as that at issue, musical works communicated to the public in the context of circus and cabaret performances are performed live, with the result that, contrary to the requirement referred to in the second sentence of recital 23 to Directive 2001/29, the public is present at the place where the communication originates.

Also according to the third and fourth sentences of recital 23 to Directive 2001/29 the right of communication to the public should cover any transmission or retransmission of a work to the public by wire or wireless means, including broadcasting, and should not cover any other acts. In the light of the foregoing, the answer (de) to Questions 1 and 2 is that Directive 2001/29 and, more specifically, Article 3(1) thereof, must be interpreted as referring only to communication to a public which is not present at the place where the communication originates, to the exclusion of any communication of a work which is carried out directly in a place open to the public using any means of public performance or direct presentation of the work.