CJEU rules that broadcasting music on a plane or train is a communication to the public, but installing relevant equipment isn’t

· copyright,InfoSoc Directive,Blue Air,exclusive rights

Is it an act of communication to the public under Article 3 of the InfoSoc Directive to broadcast music on board of a train or a plane? And what about installing equipment allowing the subsequent broadcasting of music?

After hotel rooms, spas, rehabs, dentist waiting rooms, and rental cars, yesterday it was time for the Court of Justice of the European Union (CJEU) to answer these vexed questions with reference to such transport means.

It did so in joined cases C‑775/21 and C‑826/21, Blue Air and UPFR. Both were referrals from the Bucharest Court of Appeal and were made in separate proceedings (if my analysis is correct, they are the only two referrals, besides C-283/10, ever made in the copyright field by a Romanian court). The former, Blue Air, concerned planes while the latter, UPFR, related to trains.

The CJEU answered in the affirmative the question about broadcasting of music but – very significantly – responded in the negative the one about installation of equipment (and related software). The decision was not preceded by any Advocate General (AG) Opinion.

broken image

Let’s see in greater detail what happened.

Background

In both cases, the disputes eventually resulting in legal proceedings and, subsequently, referrals to the CJEU were initiated by collective management organizations (CMOs) that submitted that the existence of sound systems within – respectively – Blue Air’s aircrafts and CFR’s trains – would entail the performance of acts of communication to the public and, therefore, the payment of relevant licensing fees by the relevant transport operators.

At first instance, the CMOs’ respective claims were upheld in relation to planes, but not having regard to trains. Appeals followed in both cases and the Court of Appeal of Bucharest made two separate referrals to the CJEU.