IP Law Daily, COPYRIGHT NEWS: Airliners and railways must pay up for playing background music to passengers, EU Court of Justice rules, (Apr 21, 2023)

By Matthew Hersh, J.D.

But just because a common carrier has a music-capable sound system does not mean it was necessarily used.

The fact that a common transportation carrier has a sound system installed that is capable of playing background music to its passengers does not require the carrier to make payments to copyright owners absent proof that the sound system was actually used, the Court of Justice of the European Union has held. The court, rendering an advisory opinion in two cases that were referred to it by an appellate court in Romania, also underscored that the rights management companies could not rely on the existence of the sound system to create a rebuttable presumption that it was used (Blue Air Aviation SA v. UCMR-ADA Asociaţia pentru Drepturi de Autor a Compozitorilo, April 20, 2023).

The dispute reached the European Union court in the wake of two proceedings in Romania. In one, a Romanian rights management organization sued Blue Air, a low-cost carrier, for its alleged failure to pay fees for the broadcast of copyrighted musical works to its passengers. The airline acknowledged that it had outfitted 22 of its 28 planes with sound systems capable of transmitting background music, but claimed that it had used the systems on only 14 of those planes. A Bucharest tribunal, finding for the rights management organization, held that under Romanian law the copyright owners were entitled to a rebuttable presumption that a music-capable sound system, if in place, had been used to transmit licensed works.

In the other dispute, a different rights management organization sued a Romanian passenger train company, Transferoviar Călători. In that case, the rights management organization argued that under Romanian law, the mere fact that the train companies had music-capable sound systems installed was enough on its own—even if the train company could prove that it had not been used—to require payment to rights owners. A Bucharest tribunal agreed with the rights management organization as a matter of law, but found that in this case it had not been proved that the trains in question had been outfitted with such a system.

The Court of Appeal for Bucharest referred both matters to the Court of Justice for a preliminary ruling, leading to this opinion.

Communication to the public. The court found, as a threshold matter, that the broadcasting of a musical work as background music to common carrier passengers constitutes a “communication to the public” under European Union law—thus triggering a right of compensation to the copyright owners. In this case, the court held, each of the operators plainly “intervene[d], in full knowledge of the consequences of its conduct, to give its customers access to a protected work.” Moreover, the court noted, the amount of people to whom the operators gave access to the work was not de minimis. In the airplane case, for example, the work at issue “had actually been broadcast in half of the aircraft operated by Blue Air, during flights operated by that airline, with the result that the public in question consists in all the groups of passengers who, simultaneously or successively, took those flights, and such a number of persons concerned cannot be regarded as too small, or even as an insignificant number.”

Nor did it matter, the court held, whether the performance of the music to customers was of a “profit-making nature.” The court below had found that it was “debatable” whether the common carriers in question here actually profited from the transmission of musical works. But that did not matter, the court found, as “a profit-making nature of that kind is not a prerequisite for finding that there is a communication to the public.”

The mere existence of a transmission system. But while the actual transmission of music to airplane or train passengers could be a communication to the public, the court held, the mere fact that a common carrier had a system that enabled such communication was not, on its own, enough to require payment to a rights organization. To be sure, as earlier precedents taught, hotel operators perform an act of communication to the public when they deliberately transmit protected works to their customers by distributing a signal to in-room televisions or radios. But here, unlike in the hotel room setting, passengers did not have the ability to make that music audible by flipping a switch in their room. Thus, the court noted, “the mere installation of sound equipment in a means of transport cannot be comparable to acts by which service providers intentionally transmit protected works to their customers by distributing a signal by means of receivers which they have installed in their establishment, allowing access to such works.”

Nor was it consistent with European law to attribute to the existence of such systems a rebuttable presumption that they had been used, the court found. Indeed, the court noted, it was not even clear that this was the rule under Romanian law (the Romanian government contended at this stage of the proceeding, contrary to the view of the local Bucharest tribunal, that it was not). In any event, the court noted, the purpose of European Union law was “to remedy the legislative differences and legal uncertainty surrounding the protection of copyright,” in light of the fact that “significant legal differences and uncertainties in protection may hinder economies of scale for new products and services protected by copyright and related rights.” That provision, therefore, “precludes national legislation which establishes a rebuttable presumption that there is a communication to the public because of the presence of such sound systems.”

The Case is Nos. C-775/21 and C-826/21.

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