Communications to the public – Blue Air and UPFR

Case Background

The adjoined case C‑775/21 and C‑826/21, Blue Air and UPFR involved a referral from the Romanian court to the CJEU regarding music onboard public transport and communications to the public.

Both Blue Air and UPFR were subject to proceedings brought by collective management organisations, who were seeking the payment of licensing fees for playing music without a license onboard passenger transport.

The referrals were focused on two questions.

• Whether broadcasting a musical work as background music in public transport constitutes a communication to the public as per Art 3(1) of the Directive 2001/29/EC (the “InfoSoc Directive”).
• Whether the installation, on board a means of transport, of sound equipment and software enabling the broadcasting of background music constitutes a communication to the public as per the InfoSoc Directive.

Case Summary

On point 1, the CJEU held that the broadcast of musical works as background music in public transport is a communication to the public. In considering the framework of Art 3 (1), the judge emphasised the indispensable role of the user when construing an ‘an act of communication’ to the public.

The judge explained that the operator of the passenger transport intervenes by giving customers access to a protected musical work which they otherwise would not have been able to enjoy.

On point 2, the CJEU maintained Recital 27 of the InfoSoc Directive, which states that the provision of sound equipment is not a communication to the public, and that it is instead the installation of those systems which would constitute a communication.

However, the court held that in a public transport scenario, the installation of sounds systems would not constitute an act of communication to the public.

Briffa Comment

The case is interesting from a legal perspective because it implies that collecting societies may not be able to request licences for the broadcasting of music because of the installation of sound equipment. It will also preclude a rebuttable presumption in national legislation that there is a communication to the public merely due to the presence of sound systems.

Considering the broader implications of the CJEU judgment, Briffa is well placed to assist with terms of copyright licences, having assisted clients in the music industry for over 25 years.