Two Romanian collective management organisations handling music copyright and related rights brought proceedings, respectively, against the air transport company Blue Air Aviation SA, and against Societatea Națională de Transport Feroviar de Călători (SNTFC) “CFR Călători” SA, a Romanian rail transport company, seeking payment of remuneration due and penalties for the broadcast, without a licence, of musical works on board aircraft and rail passenger carriages.

The Court of Appeal in Bucharest asked the CJEU:

1. whether the broadcast, inside a commercial passenger aircraft, of a musical work or a fragment of a musical work on take-off, landing or at any time during a flight, via the aircraft’s public address system, constituted a “communication to the public” under Article 3(1) of the Copyright Directive (2001/29/EC); and
2. whether a rail carrier which uses train carriages in which sound systems intended for the communication of information to passengers are installed thereby makes a “communication to the public” under Article 3(1).

The CJEU held that broadcasting a musical work as background music on passenger transport does indeed constitute a “communication to the public” under Article 3(1). However, the mere installation, on board a means of transport, of sound equipment and, where appropriate, of software enabling the broadcast of background music does not constitute a “communication to the public”. Consequently, EU law precludes national legislation which establishes a rebuttable presumption that musical works are communicated to the public because of the presence of sound systems in passenger transport.

The CJEU noted that Member States have to ensure authors have the exclusive right to authorise or prohibit any communication to the public of their works, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them. Authors therefore have a right which is preventative in nature enabling them to intervene between possible users of their works and the communication to the public of those works in order to prohibit such communication.

In this case, the CJEU said that the broadcast on passenger transport by the operator of that transport of a musical work as background music constituted a communication to the public of that work, since, on the one hand, in so doing, that operator intervenes, in full knowledge of the consequences of its actions, to give its customers access to a protected work. In fact, in the absence of that intervention, those customers would not be able to enjoy the broadcast work. In addition, that work is broadcast to all groups of passengers who, simultaneously or successively, take that means of transport.

By contrast, the mere provision of physical facilities for enabling or making a communication does not in itself constitute a communication to the public. Consequently, EU law precludes national legislation which establishes a rebuttable presumption that there is a communication to the public because of the presence of sound systems in a means of transport. Indeed, the CJEU said, such legislation may have the consequence of requiring payment for the mere presence of those systems, even in the absence of any act of communication to the public. (Joined Cases C-775/21 and C-826/21 Blue Air Aviation SA v UCMR – ADA Asociaţia pentru Drepturi de Autor a Compozitorilor (C‑775/21), and Uniunea Producătorilor de Fonograme din România (UPFR) v Societatea Națională de Transport Feroviar de Călători (SNTFC) “CFR Călători” SA (C‑826/21) EU:C:2023:307 (20 April 2023) — to read the judgment in full, click here.