Società Consortile Fonografici (SCF) v Marco Del Corso.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2011:431
• Date: 29 June 2011
• Celex Number: 62010CC0135
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Docket Number: C‑135/10

OPINION OF ADVOCATE GENERAL

TRSTENJAK

delivered on 29 June 2011 ( 1 )

Case C-135/10

SCF Consorzio Fonografici

v

Marco Del Corso(Reference for a preliminary ruling

from the Corte d’appello di Torino (Italy))

‛Copyright and related rights — Directives 92/100/EEC and 2006/115/EC — Rights of performers and phonogram producers — Article 8(2) — Communication to the public — Indirect communication of phonograms broadcast by radio in the waiting room of a dental practice — Need for a profit-making purpose — Equitable remuneration’

Table of contents

I – Introduction

II – Applicable law

A – International law

1. The Rome Convention

2. The WPPT

3. TRIPs

B – European Union law

1. Directive 92/100

2. Directive 2006/115

3. Directive 2001/29

C – National law

III – Facts, procedure before the national courts and questions referred for a preliminary ruling

IV – Procedure before the Court

V – Preliminary remarks

VI – The fourth and fifth questions

A – Main arguments of the parties

B – Admissibility of the questions

C – Legal assessment

1. The interpretation of Article 3(1) of Directive 2001/29 by the Court

2. The relevant provision in the present case

3. The interpretation of Article 8(2) of Directive 2006/115

(a) Autonomous Union law concepts

(b) International law and Union law context

(c) The concept of communication to the public

(i) The concept of communication

– Consideration of recital 27 in the preamble to Directive 2001/29

– Consideration of recital 23 in the preamble to Directive 2001/29

– Interim conclusion

(ii) The concept of public

(iii) The other pleas

– The need for an entrance fee

– Profit-making purpose

– The will of the patients

– The other pleas

(iv) Conclusion

(d) The other requirements

4. Conclusion

VII – The first to third questions

A – Main arguments of the parties

B – Admissibility of the questions

C – Legal assessment

VIII – Conclusion

I – Introduction

1. Just as Gutenberg’s invention of the printing press ultimately led to copyright protection of written works, Edison’s invention of the phonograph not only increased the economic importance of copyright protection of musical works, but also paved the way for the introduction of related rights for performers and phonogram producers. If a phonogram is used, this affects not only the author’s right in the communicated copyright work, but also the related rights of performers and phonogram producers.

2. The present reference for a preliminary ruling from the Corte d’appello di Torino (Court of Appeal, Turin; ‘the referring court’) concerns the right to equitable remuneration under Article 8(2) of Council Directive 92/100/EEC of 19 November 1992 on rental right and lending right and on certain rights related to copyright in the field of intellectual property ( 2 ) and of Directive 2006/115/EC of the European Parliament and of the Council of 12 December 2006 on rental right and lending right and on certain rights related to copyright in the field of intellectual property (codified version), ( 3 ) which must be paid in respect of communication to the public of a phonogram already published for commercial purposes.

3. The referring court wishes to know, first of all, whether a dentist who makes radio broadcasts audible in his practice is required to pay equitable remuneration for the indirect communication to the public of phonograms communicated in the radio broadcasts.

4. Secondly, the referring court asks whether the rules of international law on which the rules of Union law concerning the right to equitable remuneration are based are directly applicable in a dispute between private individuals and what the relationship is between those rules of international law and the rules of Union law.

5. The substance of the first question is closely connected with SGAE v Rafaeles Hoteles. ( 4 ) In that case, the Court found, first of all, that communication to the public within the meaning of Article 3(1) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society ( 5 ) exists where a hotel operator distributes a signal by means of television sets provided in its guest bedrooms, irrespective of the technique used to transmit the signal. It also found that the private nature of guest bedrooms does not preclude communication to the public. In the present case, the question arises in particular whether these principles, which concern communication to the public of copyright works under Article 3(1) of Directive 2001/29, can be applied to the concept of communication to the public within the meaning of Article 8(2) of Directive 92/100 and of Directive 2006/115, which concerns the related rights of performers and phonogram producers.

6. In addition, the present case is closely connected with Case C-162/10 Phonographic Performance, in which I am delivering my Opinion on the same date as the Opinion in the present case. In Phonographic Performance the question arises in particular whether the operator of a hotel or a guesthouse which provides televisions and/or radios in bedrooms to which it distributes a broadcast signal is required to pay equitable remuneration for the indirect communication to the public of the phonograms which are used in the radio and television broadcasts.

II – Applicable law

A – International law

1. The Rome Convention

7. Article 12 of the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations of 26 October 1961 (‘the Rome Convention’) ( 6 ) provides: ‘If a phonogram published for commercial purposes, or a reproduction of such phonogram, is used directly for broadcasting or for any communication to the public, a single equitable remuneration shall be paid by the user to the performers, or to the producers of the phonograms, or to both. Domestic law may, in the absence of agreement between these parties, lay down the conditions as to the sharing of this remuneration.’

8. Article 15(1)(a) of the Rome Convention provides: ‘1. Any Contracting State may, in its domestic laws and regulations, provide for exceptions to the protection guaranteed by this Convention as regards: (a) private use’.

9. Article 16(1)(a) of the Rome Convention states: ‘1. Any State, upon becoming party to this Convention, shall be bound by all the obligations and shall enjoy all the benefits thereof. However, a State may at any time, in a notification deposited with the Secretary-General of the United Nations, declare that: (a) as regards Article 12: (i) it will not apply the provisions of that Article; (ii) it will not apply the provisions of that Article in respect of certain uses; (iii) as regards phonograms the producer of which is not a national of another Contracting State, it will not apply that Article; (iv) as regards phonograms the producer of which is a national of another Contracting State, it will limit the protection provided for by that Article to the extent to which, and to the term for which, the latter State grants protection to phonograms first fixed by a national of the State making the declaration; however, the fact that the Contracting State of which the producer is a national does not grant the protection to the same beneficiary or beneficiaries as the State making the declaration shall not be considered as a difference in the extent of the protection; …’

10. Italy is a Contracting Party to the Rome Convention and has made a declaration pursuant to Article 16(1)(a)(ii), (iii) and (iv).

11. The European Union is not a Contracting Party to the Rome Convention. Only States are able to accede to the Convention.

2. The WPPT

12. The WIPO Performances and Phonograms Treaty (WPPT) of 20 December 1996 ( 7 ) contains rules of international law on related rights, which go further than the Rome Convention.

13. Article 1 of the WPPT provides: ‘Relation to Other Conventions (1) Nothing in this Treaty shall derogate from existing obligations that Contracting Parties have to each other under the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations done in Rome, October 26, 1961 (hereinafter the “Rome Convention”). (2) Protection granted under this Treaty shall leave intact and shall in no way affect the protection of copyright in literary and artistic works. Consequently, no provision of this Treaty may be interpreted as prejudicing such protection. (3) This Treaty shall not have any connection with, nor shall it prejudice any rights and obligations under, any other treaties.’

14. Article 2 of the WPPT, which lays down definitions, provides in points (f) and (g): ‘For the purposes of this Treaty: (f) “broadcasting” means the transmission by wireless means for public reception of sounds or of images and sounds or of the representations thereof; (g) “communication to the public” of a performance or a phonogram means the...