The CJEU’s judgment in joined cases C‑775/21 and C‑826/21, Blue Air and UPFR (20 April 2023) provides the latest instalment to a catalogue of cases on the concept of “communication to the public” in EU law. The court held that the concept of communication to the public includes broadcasts of musical works as background music on aircraft and trains, but does not include the mere installation of sound systems which enable this background music to be played on board.

Background

Under Article 3(1) of the InfoSoc Directive 2001, authors in EU member states can allow or prevent any “communication to the public” of their works. Such communication can involve electronic transmission to a public not present at the place of the original transmission, including broadcasting. The relevant test requires both an ‘act of communication’, and for this to be to a ‘public’.

The CJEU has assessed this concept against the playing of background music in public in various contexts, including dentists’ waiting rooms, hotel rooms, pubs and spas. This judgement deals with the issue in relation to public transport.

Facts

In separate proceedings in Romania, two collecting societies brought actions against the airline, Blue Air, and the Romanian rail company, CFR. The collecting societies sought royalties for what they deemed to be “communication to the public”, through (in both cases) the installation of sound systems which could be used to play music on board, and (in Blue Air’s case only) the actual broadcast of background music on those systems.

In the Romanian courts, the claims succeeded in relation to aircraft, but not trains. On appeal in both cases, the Court of Appeal in Bucharest asked the CJEU to rule on questions regarding the interpretation of “communication to the public” under Article 3(1) of the InfoSoc Directive (and also Article 8(2) of the Rental and Lending Rights Directive).

In essence, these were asking:

• Does “communication to the public” include the broadcasting of musical work as background music on public transport? (This question only arose in Blue Air.)
• Does “communication to the public” include the mere installation of sound systems and related software on public transport, which can be used to play musical work as background music on board?

Decision

In relation to the first question:

The CJEU’s answer was yes. The court held that the first element of the test (an “act of communication”) was clearly met by a public transport operator broadcasting a musical work as background music on board. This was because the operator had intervened to give its customers access to a protected work, with full knowledge of the consequences of its conduct (and even more so where those customers would not in principle be able to enjoy that work – had the operator not so intervened).

The second element (communication to a ‘public’) was also met. Blue Air had broadcast the background music during flights on half of its aircraft. The ‘public’ was, therefore, the groups of passengers who, simultaneously or successively, took those flights.

Notably, the CJEU emphasised that “communication to the public” could in theory take place even when there is no profit-making intention behind it; in the court’s view, this was “not a prerequisite”.

In relation to the second question:

On this question, the CJEU’s answer was ‘no’. The court reiterated its distinction between an operator merely providing relevant technical systems, which (under Recital 27 to the InfoSoc Directive) is not itself an “act of communication”, and actually installing those systems – which normally can constitute an “act of communication”.

However, the CJEU held that, in a public transport scenario, installing such systems did not constitute an “act of communication”. The court distinguished this situation from its decisions in other scenarios, such as pubs and hotels, where service providers intentionally transmit protected works to their customers by distributing a TV or radio signal from receivers they have installed on their premises.

Comment

The CJEU has long emphasised that “communication to the public” is a highly fact and place-sensitive exercise. As such, it is interesting to assess the court’s conclusion that no such communication occurs when a public transport operator merely installs sound systems which are capable of playing background music on board.

This conclusion isn’t easily reconcilable with the CJEU’s previous decisions regarding, for example, hotels, spas and pubs. It’s possible the court believed the crucial distinction to be that the installation of such systems in those settings (so that, for example, TV or radio signals could be broadcast to customers) is a more deliberate act of ‘communication’ by the operator, this being a service customers could more reasonably expect to receive in such establishments.

It is difficult to see why this same reasoning wasn’t applied to public transport. Perhaps the reason is that the CJEU framed the questions here generically; it considered “public transport” overall, rather than the specific forms of transport on show in this case. Arguably, air and rail travel are two of the most competitive transport industries, characterised by their vigorous competition on quality of services in order to attract customers and generate profit. Such services may well include the use of, for example, TV and music.

By framing the question in relation to “public transport” more generally, the court has arguably failed to see the specific nuances in this case which merited its usual, highly context-sensitive approach.

To conclude (with advance apologies for the wordplay), the CJEU’s decision is not plane wrong, but it is perhaps a slight derailment from the court’s previous analyses on “communication to the public” – expect further argument on this later down the track.