Author: Tony Ballard
New but somewhat equivocal light has been cast on what “communication to the public” (“CTTP”) means in European copyright law by two judgments delivered by the Court of Justice on 15 March 2012 (Societa Consortile Fonografici (SCF) v Marco del Corso and Phonographic Performance (Ireland) Limited (PPIL) v Ireland).
What CTTP means matters as online digital delivery increasingly replaces physical carriers, such as CDs and DVDs, as the means of distribution of music, films and other copyright content. Rights owners, broadcasters, platform operators, users, device manufacturers, dentists (as to which see below) and lawyers (especially) need to know when, where and in what circumstances the making available of content requires authorisation by or payment to rights holders. The Information Society Directive does not say what it means and the spate of recent decisions in the courts have enlarged its apparent scope in some surprising ways. Gone is the comfortable assumption, for example, that CTTP is limited to transmissions on electronic networks – recent decisions of the Court of Justice have held that it includes showing films to customers in a pub and even (in one of the 15 March judgments) leaving CDs and players in a hotel room for the convenience of guests.
Various aspects of the CTTP right remain to be clarified in outstanding references to the Court of Justice but as some holes are filled, others appear, as these two most recent cases show.
They were both brought by collecting societies representing phonogram producers. They sought to collect equitable remuneration for the playing of records in hotel rooms on the one hand and in a dentist’s surgery on the other on the basis that this amounted to a CTTP. The decision was that the first was, and the second was not, a CTTP. But the surprise in this case was that, far from following the SGAE v Rafael Hoteles case (where the distribution by a hotel of television signals to guest rooms was held to be a CTTP under the Information Society Directive and led to a string of cases including Airfield where provision of a satellite platform was held a CTTP), the Court held that CTTP under the Rental and Lending Directive had a different meaning. It was a surprise because it had hitherto seemed that the Court had been seeking to establish what it called in the SGAE case an autonomous and uniform interpretation of the concept throughout the Community.
In these two new cases, however, the Court started from the proposition that EU legislation must, so far as possible, be interpreted in a manner that is consistent with international law, in particular where the legislative provisions are intended specifically to give effect to an international agreement concluded by the EU. In the case of these two Directives, each was intended to give effect to different international agreements and the Court took the view that the CTTP concept in each of them had to be interpreted in a way which was compatible with the particular international agreements to which the Directive was intended to give effect, taking account of their context and purpose. That led it to adopt a different approach to the assessment of whether a CTTP had taken place under the Rental and Lending Directive from that which applied under the Information Society Directive.
The details are less important than the fact that the interpretation of CTTP under the one Directive was held to be different from that under the other. It means that cracks have appeared in what hitherto seemed to be a single, unitary concept of CTTP. Its interpretation will depend on whichever Directive applies to the facts. It also means that the answer to the question where a CTTP takes place, which has been referred to the Court of Justice in the Football Dataco v Sportradar and which is keenly awaited, may not necessarily apply to copyright at all since the issue has arisen not under the copyright Directives but under the Database Directive. That would be a huge step backwards.
So far as the details are concerned, the Court in the case of the dentist’s surgery approached the question whether there was a CTTP in the surgery by taking account of a number of what it called complementary criteria, including the role of the user, the nature of the listening public and whether the communication was profit-making. On the one hand this contrasts with the approach of the Court in the SGAE line of cases under the Information Society Directive, where the question turned on whether there was an intervention by which protected works were made accessible to a new public. On the other hand, it is similar to the multi-factorial approach that Floyd J used in trying to apply that very question in ITV v TVCatchup to online retransmission of over the air broadcasts and which was the basis of his reference of the matter back to the Court of Justice.
That reference back may be an opportunity for the Court of Justice, by adopting what was in the dentist’s case a multi-factorial approach similar to that taken by Floyd J, to align its decisions under the various Directives, to prevent the cracks from spreading and to restore something of a unitary interpretation of CTTP, a key concept in the new digital environment.