“Communication to the Public”: CJEU Finds it Does Not Include Live Performances or Direct Presentations of Copyrighted Work

The Court of Justice of the European Union (CJEU) has once again considered the meaning of “communication to the public” under Article 3(1) of the Copyright Directive (2001/29/EC). This time the Court found that it does not include live performances or direct presentation of copyright protected works.

BACKGROUND

In Circul Globus Bucuresti (Circ & Variete Globus Bucuresti) v Uniunea Compozitorilor si Muzicologilor din România – AsociaŃia pentru Drepturi de Autor C-283/10 24 November 2011(unreported), the Romanian collecting society, Uniunea Compozitorilor si Muzicologilor din România– AsociaŃia pentru Drepturi de Autor (UCMR-ADA), brought proceedings against Globus Circus, an organiser of circus and cabaret performances, in respect of Globus Circus’ public dissemination of musical works for commercial purposes, which UCMR-ADA alleged had been done without a licence and without paying royalties.

Before the District Court of Bucharest, UCMR-ADA argued that under Romanian copyright law, the exercise of the right to communicate musical works to the public is subject to compulsory collective management. Globus Circus, on the other hand, argued that it had entered into contracts directly with the authors of the musical works, under which copyright had been waived, and that it had paid those authors an appropriate fee in return for using their works.

The Romanian courts held, at first instance and on appeal, that under Romanian law, the exercise of the right to communicate musical works to the public had to be managed collectively. Accordingly, Globus Circus was required to pay UCMR-ADA the required fees.

Globus Circus appealed to the Romanian Supreme Court of Cassation and Justice. The Romanian Supreme Court asked the CJEU whether “communication to the public” under Article 3(1) of the Copyright Directive should be interpreted as referring exclusively to communication to a public that is not present at the place where the communication originates, or also to any communication of a work that is carried out directly in a place open to the public using any means of public performance or direct presentation of the work.

DECISION

The CJEU pointed out that neither Article 3(1) of the Copyright Directive, nor any other provision, defined the concept of “communication to the public”. Therefore, in order to interpret the law, account had to be taken not only of the wording of Article 3(1), but also of the context in which it was used and of the aims of the legislation of which it was part.

Accordingly, the CJEU noted that Recital 23 to the Directive stated that the right of communication to the public “should be understood in a broad sense covering all communication to the public not present at the place where the communication originates”.

Further, following the recent decision in Joined Cases C-403/08 and C-429/08 Football Association Premier League Ltd v QC Leisure (FAPL), “communication to the public” does not cover “direct representation or performance”, a concept referring to that of “public performance”, which appears in Article 11(1) of the Berne Convention and which encompasses interpretation of works before a public that is in direct physical contact with the actor or performer of those works. That is why, the CJEU said, Recital 23 includes the words “not present at the place where the communication originates”.

Given that the musical works in question were communicated to the public in the context of live circus and cabaret performances, that element of direct physical contact existed, with the result that the public was present at the place where the communication originated.

Further, the CJEU said, the harmonisation sought by the Copyright Directive was not intended to cover “conventional” forms of communication to the public, such as the live presentation or performance of a work. This, the CJEU said, was borne out by the third and fourth sentences of Recital 23, which states that the author’s right to communicate to the public “should cover any such transmission or retransmission of a work to the public by wire or wireless means, including broadcasting. This right should not cover any other acts”. In other words, the right to communicate to the public did not cover any activity that did not involve a transmission or a retransmission of a work, such as live presentations or performances of a work.

COMMENT

This decision simply confirms what was said in FAPL, i.e., that Recital 23 to the Copyright Directive makes it clear that the concept of “communication to the public” covers communication to a public not present at the place where the communication originates, which logically thereby excludes live performances and direct presentations in the sense of the Berne Convention.