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CJEU Ruling: Hiring out cars with radio receivers is not communication to the public

The Court of Justice of the European Union (the CJEU) has ruled in its recent judgment that the hiring out of motor vehicles equipped with radio receivers does not constitute a communication to the public.

In practice, this means that car rental companies are not required to obtain copyright licences just so that they can hire out cars fitted with radio receivers.

Background of the case

Can a car leasing company be considered a ‘user’ that performs a communication to the public? This was the key point of Stim and Sami (C-753/18), referred from the Swedish Supreme Court to the CJEU, regarding the interpretation of Directive 2001/291 (InfoSoc Directive) and Directive 2006/1152 (Rental Rights Directive).

The request was made in two proceedings between Stim (the Swedish organisation which collectively manages copyright in music) and SAMI (the Swedish organisation managing the related rights of performers), on the one hand, and two motor vehicle rental companies established in Sweden (Fleetmanager and NB), on the other hand. In essence, Stim claimed that Fleetmanager, by making available vehicles to motor vehicle rental companies fitted with radio receivers for short-term hires to private clients, contributed to the copyright infringements committed by those companies, who have made musical works available to the public without being authorised to do so.

In turn, NB claimed that it was not required to pay fees to SAMI for the use of sound recordings on the basis of the sole fact that the vehicles which it leases to individuals and entrepreneurs are equipped with radio receivers and CD readers, to pay fees to SAMI for the use of sound recordings.

Previously the CJEU has interpreted that a communication to the public may take place – in the manner meant by Article 3(1) of the InfoSoc Directive – when transmissions are made by means of technical equipment to a nearby public for example in a hotel, café, rehabilitation centre, or a spa.

The ruling

The CJEU’s decision that “the rental of motor vehicles fitted with radios does not constitute communication to the public” rests on its consideration of recital 27 of the InfoSoc directive that “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 CJEU held that the role of the car rental companies was limited to the mere provision of facilities, stating that “this is the case for the supply of a radio set integrated into a rental motor vehicle, which makes it possible to receive, without any additional intervention on the part of the rental company, the terrestrial broadcasting accessible in the area where the vehicle is found.”

In the judgment, the CJEU also pays attention to that previous case law highlights the important role of the ‘user’ in providing a ‘communication to the public’. The CJEU emphasized that case law “repeatedly emphasised the essential role played by the user and the deliberate nature of their interventio”‘ when “this user performs a ‘communication act’ when he intervenes, in full knowledge of the consequences of his behaviour, to give his customers access to a protected work.” The acts of the car rental companies did not meet this criterion.

Comment

This decision is important in clarifying further the scope of the concept communication to the public in the light of the InfoSoc Directive and Rental Rights Directive. It helps to define the important role of a user.

Anne Nyström

anne.nystrom@belegally.com

LL.M. Anne Nyström is Co-Founder of BeLegally. She practises law at Vedinor Law Offices in Finland, providing advice to clients worldwide. Her focus areas include international and European e-commerce, intellectual property, marketing, and social media. In her free time, she enjoys art and culture in many forms, exercising in nature and writing fictitious adventures about sassy ladies in the charge of their own life. Anne is always happy to connect, so feel free to contact her at anne.nystrom@belegally.com or on social media.

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