April 20, 2020

Föreningen Svenska Tonsättares Internationella Musikbyrå u.p.a. (STIM) is the Swedish collecting society managing copyright in musical compositions. Svenska Artisters och musikers, intresseorganisation ek för (SAMI) is the Swedish collecting society for performers. The defendant companies, Fleetmanager Sweden AB and Nordisk Biluthyrning AB (NB), are car rental companies in Sweden providing, directly or through intermediaries, hire cars with radio receivers, in particular for periods not exceeding 29 days, which is considered a short-term hire under national law.

STIM issued proceedings against Fleetmanager, claiming that by making cars with radios available to car hire companies for short-term hires to private clients, Fleetmanager was jointly liable for the copyright infringement committed by those companies, who were making musical works available to the public without consent.

In the meantime, SAMI issued proceedings against NB in the Swedish courts seeking a declaration that NB was not required, on the basis of the fact that the cars that it rented were equipped with radios and CD readers, to pay fees to SAMI for the use of sound recordings.

Both matters eventually reached the Swedish Supreme Court, which asked the CJEU whether hiring out cars with radios constituted a communication to the public under Article 3(1) of the Copyright Directive (2001/29/EC) and Article 8 of the Rental and Lending Directive (2006/115/EC).

The CJEU noted that recital 27 of the Copyright Directive states that “the mere provision of physical facilities for enabling or making a communication does not in itself amount to communication within the meaning of this directive”. The CJEU held that a radio receiver, which as an integral part of a hire car, makes it possible to receive the terrestrial radio broadcasts available in the area in which the vehicle is located without any additional intervention by the hire company. The CJEU said that that is different from acts of communication by which service providers intentionally broadcast protected works to customers by distributing a signal using receivers that they have installed.

The CJEU concluded that making available to the public hire cars equipped with radio receivers does not amount to an act of communication. Therefore there was no need to examine whether such making available constituted communication to a “public” under Article 3(1), or under Article 8 since the meaning of “communication to the public” is the same in both Directives. (Case C-753/18 Föreningen Svenska Tonsättares Internationella Musikbyrå u.p.a. (Stim) v Fleetmanager Sweden AB EU:C:2020:268 (2 April 2020) — to read the judgment in full, click here).