The Court of Justice of the European Union (the "ECJ") handed down two separate rulings on 15 March 2012 (Cases C-135/10 and C-162/10) holding that hotels making available music in their rooms are obliged to pay equitable remuneration, whilst dentists playing music in their private practice are under no such obligation. The ECJ differentiated both cases on the basis of its interpretation of "communication to the public" within the meaning of EU law.
The first case had been referred to it by the Irish High Court, before which the Irish rights collecting society representing music producers (PPL) had challenged the provision under Irish law exempting hotels and guesthouses from paying equitable remuneration for broadcasts of recordings in bedrooms of their accommodation.
The second case concerned an action brought by SCF, the Italian rights collecting society, against a dentist for playing radio music in his private dental practice without paying.
The ECJ approached both cases from the angle of Directive 2006/115/EC of 12 December 2006 on rental rights and lending right and on certain rights related to copyright in the field of intellectual property (the "Copyright Directive"). The ECJ's assessment centered around the interpretation of the requirement whether the cases at hand concerned a "communication to the public", triggering the obligation to pay equitable remuneration on the basis of Article 8.2 of the Copyright Directive.
The broadcasting of radio and TV programmes in hotel bedrooms constituted, according to the ECJ, such a communication to the public. The first criterion applied by the ECJ is the role of the user. According to the ECJ, the user makes a communication to the public when it intervenes, in full knowledge of the consequences of its action, to give access to a broadcast containing the protected work to its customers.
Second, the ECJ looked at the relevant public. When music is broadcast in hotels, it is communicated to an indeterminate number of potential listeners and a...