HIRING OUT CARS WITH RADIOS IS NOT A “COMMUNICATION TO THE PUBLIC"

The CJEU held that the hiring out of motor vehicles equipped with radio receivers did not constitute a “communication to the public” within the meaning of Art 3(1) of the Directive 2001/29/EC (the "InfoSoc Directive"). The decision in Föreningen Svenska Tonsättares Internationella Musikbyrå u.p.a. (Stim) and Svenska artisters och musikers intresseorganisation ek. för. (SAMI) v Fleetmanager Sweden AB and Nordisk Biluthyrning AB (Case C-753/18) reinforces the distinction between providing a physical facility, which is not a “communication to the public” and actively engaging in the act of communication itself.

The referral to the CJEU was made by the Swedish Supreme Court which heard a dispute brought by Stim and SAMI (the “Agencies”) managing, respectively, copyright in music and related performers’ rights in Sweden against motor vehicle rental companies (the “Defendants”). The Agencies alleged that the Defendants, by making the vehicles equipped with radio receivers available for short-term hires to third parties (namely, motor vehicle rental companies), contributed to the copyright infringement committed by those companies. If the actions by the Defendants constituted communication to the public, then the Agencies would have the right to request a fair remuneration under Art 8(2) of Directive 2006/115 (the sum of approx. EUR 34 500 with interest was being claimed before the Swedish court).

The Supreme Court referred the following questions to the Court of Justice for preliminary ruling:

(1) Does the hiring out of cars which are equipped as standard with radio receivers mean that the person who hires the cars out is a user who makes a “communication to the public” within the meaning of Article 3(1) of Directive 2001/29 and within the meaning of Article 8(2) of Directive 2006/115?

(2) What is the significance, if any, of the volume of the car hire activities and the duration of the hires?

In determining the first question, the Court referred to the settled case-law, according to which the concept of “communication to the public” includes two cumulative criteria, namely an “act of communication” of a work and the communication of that work to a relevant “public”. When determining whether the hiring out of vehicles equipped with radio receivers constitutes “an act of communication”, the Court must take into account the role played by the user and the deliberate nature of his intervention. The user makes an “act of communication” if he intervenes, in full knowledge of the consequences of his action, to give his customers access to a protected work, particularly where, in the absence of that intervention, those customers would not be able to enjoy the broadcast work, or would be able to do so with difficulty [32].

Such is also apparent from Recital 27 of the InfoSoc Directive which states: “The mere provision of physical facilities for enabling or making a communication does not in itself amount to communication within the meaning of this directive.”

The Court concluded that a supply of a radio receiver by a leasing company, which falls squarely within the wording of Recital 27 and is not an “act of communication” and distinguished it from the acts of communication by which service providers intentionally broadcast protected works to their clientele, by distributing a signal by means of receivers that they have installed in their establishment (see e.g. Reha Training, C‑117/15) [35]. In light of the answer to the first question, the CJEU did not proceed to answer the second question.