This post is written in co-authorship by Ms. Riddima Sharma and Ms. Amshula Chauhan.
The Court of Justice of European Union (CJEU) in a recent decisiontook to note that companies which provide cars with standard pre-installed radio tuner boxes, for rental basis are not engaged in communicating the musical works to the public through the radio tuner boxes and thus are not entitled to pay license fees to the authors, composers and the sound recording companies of the musical works.
Briefly, the questions put forth before the CJEU in the case were (1) Whether hiring out vehicles equipped with radio receivers would mean that the person who hires the cars out is a user who makes ‘communication to the public’ within the meaning of Article 3(1) of the InfoSoc Directive read with Article 8(2) of the Rental and Lending Directive and (2) what is the significance, if any, of the volume of the car hire activities and the duration of the hires. Article 3(1) of the Information Society Directive clearly provides the member states in the European Union with the right to authorise or prohibit communication/making available for communication of works to the public, whereas Article 8(2) of the Rental and Lending Directive provide for the equitable remuneration payable to the performers/phonogram producers in relation to communication to the public of works by way of broadcast.
In order to come to the aforesaid conclusion, the CJEU premised its decision on the pre-established criteria for ascertaining whether the acts of the user/ motor company fell within the ambit of the term ‘communication to the public’. In this regard it must be noted that the right of ‘communication to the public’ is not defined in the InfoSoc Directive, however, the CJEU takes a combination of teleological and systematic approach in interpreting the right of ‘communication to the public’ in a broad sense which is also in consonance with the international laws. The present article briefly analyses the inconsistent approach adopted by the CJEU while deciphering which/what acts fall within the ambit of the term ‘communication to the public’.
- Whether merely providing radio tuners in rental cars would amount to communication to the public?
The CJEU, in respect of questions 1 and 2 collectively held that the services so provided by companies in relation to letting out cars equipped with radio receivers, for hiring purposes and the act of broadcasting of works through radio receivers, authored by sound recording producers did not fall under the acts of ‘communication to the public’.
According to the CJEU, the concept of ‘communication to the public’ involves fulfillment of two complimentary criterions being (1) act of communication itself and (2) public, the application of which may vary from case to case. However, one must fathom the interdependence of the two criteria on each other. Specifically stating, the CJEU while adopting a teleological approach has consistently held that the latter criterion, shall be construed broadly in order to give wider protection to the right-holders.
1.1 Act of communication
The concept of communication would broadly cover any broadcast of protected works, irrespective of the means or technical procedure used along with the aspect of ‘intentional intervention’. Thus, according to some scholars, ‘communication’ can arguably be defined as an intentional intervention which consists of transmission of works to the user, without which the user may not be able to access/ enjoy the works. Additionally, for an act to fall under the banner of ‘communication’ it is sufficient, that the work is made available to the public, irrespective of whether the public accesses the work made available to them. However, in the present case, the CJEU, chose to individually assess the present act of the motor companies based on the criteria of intentional intervention and the role played by the user. In doing so, the CJEU emphasised that such a criterion shall be applied both, “individually and in their interaction with each other, in so far as they may, in different situations, be present to widely varying degrees”.
Juxtaposing the aspect of ‘intentional intervention’ into the present case, the CJEU, held that such motor companies were not engaged in communicating the protected works to the public as there is a clear difference between the supply of terrestrial broadcast available in the area where such hire services were provided and the act of communication to the public by service providers, who intentionally broadcast protected works to the public, by distributing a signal by means of receivers that they have installed in their establishment. It must be noted at this point, that it was undisputed that the vehicle rental companies did not transmit any signals to the car. However, one could view the intention of the motor companies from the aspect of allowing ‘additional services’ in the form of radio for the enjoyment of the users, irrespective of whether the radio was utilized or not, though the CJEU does not place much emphasis on the ‘additional services’ criteria in any of its previous decisions. However, one may argue that such additional services could be directly proportionable to the economic benefits and personal preference amongst users while hiring such cars equipped with radio and vice-versa.
While holding the aforementioned decision, the CJEU oddly referred to the ‘public’ and ‘private’ criterion as ‘irrelevant’, even though such element could have had a direct relation to the commercially exploitative business of the motor companies. The term public includes an indeterminate number of potential television viewers. Given that the CJEU, has earlier, in the case of hotels held that the private nature of the hotel rooms does not preclude the communication of a work by means of television sets, a similar stand could have been taken in the present case. Previously, the Court while dealing with the question of ‘potential viewers’ in the case of hotels, took into consideration the very fact that the number of potential television viewers might differ, however, while negating the cumulative effect of making the works available to a large audience through the hotel premises, focused on the potential viewers enjoying the communication of works through their rooms which are of limited economic interest for the hotel. A consideration could have been placed by the CJEU even in the case of such motor companies.
- Mere provision of physical facilities
It is important to note that the CJEU while giving its decision gave weight to ‘Agreed Statement’ which was adopted in interpreting Article 8 of the WIPO Copyright Treaty which reads as follows:
“It is understood that the mere provision of physical facilities for enabling or making a communication does not in itself amount to communication within the meaning of the Treaty of the Berne Convention. It is further understood that nothing in Article 8 precludes a contracting part from applying Article 11bis(2).”
It must be noted that the WCT does not offer a clear definition as to which acts would fall under the purview of ‘mere physical facilities’. However, according to some scholars, merely providing services through digital facilities that allow distribution of protected works can argumentatively be excluded from the purview of ‘protected use’. Moreover, “it is to be noted that the Agreed Statement is limited to the act of communication to the public and there is no mention of the reproduction of copyright protected works. Accordingly, where the same act constitutes both reproduction and communication to the public, it appears that the Agreed statement may not exempt the platform firm from liability for the act of reproduction”.
Holding similar views with the opinion of the Advocate General, the CJEU held that the supply of radio tuner boxes in cars formed an ‘integral part’ of a car, which allowed one to receive terrestrial radio broadcast already available in the area where the car would be placed, without any additional intervention by the motor company.
- An Indian Perspective: ‘Communication to the Public’ in India
Section 14(1)(a)(iii) and 14(1)(e)(iii) of the Indian Copyright Act, 1957 gives the exclusive rights to the authors of literary and musical works and sound recordings to authorize the communication of their works to the public. The term ‘communication to the public’ has been defined under Section 2(ff) of the Copyright Act, 1957 as making any work or performance available for being seen or heard or otherwise enjoyed by the public directly or by any means of display or diffusion other than by issuing physical copies of it, whether simultaneously or at places and times chosen individually, regardless of whether any member of the public actually sees, hears or otherwise enjoys the work or performance so made available. In addition to this, the explanation to Section 2(ff) clearly states that communication through satellite or cable to more than one household including residential rooms of a hotel shall be deemed to be communication to the public.
The purview of ‘communication to the public’ in India, has been widely looked at from the angle of broadcasting protected works through hotel rooms, however, no case similar to that of the aforementioned CJEU decision has been brought before the Indian Courts.
However, on the basis of the criteria adopted by the EU courts, alternately the Indian courts have laid strong emphasis on the ‘public’ to whom the communication of works are being targeted to. One of the landmark decisions which throws light on the meaning of the term ‘public’ in relation to communication of works isGarware Plastics and Polyester Ltd. and Ors. vs. Telelink and Ors.TheBombay High Court while relying on the decision of the UK Courts, held that “whether a communication is to the public or whether it is a private communication depends essentially on the persons receiving the communication. If they can be characterised as the public or a portion of the public, the communication is to the public.” Further, the Court recognized the following three factors to determine what constitutes the ‘public’:
- the character of the audience and whether it could be considered as purely domestic/private, or whether it can be characterized as the public or a portion of the public;
- whether the audience in relation to the owner of the copyright can be so considered; and;
- whether permitting such performance would in any way whittle down the protection given to the author of a copyright under the Copyright Act resulting in the owner being deprived of monetary gains out of the intellectual property.
A cursory glance at the above-mentioned factors draws attention to factor (b) which may arguably be considered to give a broad purview to the ‘public’ to whom protected works are being communicated.
Another similar decision was that of Super Cassette Industries versus Nirulas Corner House (P) Ltd. (2008), wherein the Delhi High Court while confirming an injunction against the hoteliers held that the guests in hotel rooms amounted to a distinct ‘public’ audience since the service was provided by the hotels directly to the customers and not by the cable operator.
According to the authors, there seems to be void when it comes to exact requirements to be qualified as “communication to public” of copyrighted works. The various judgements in this sphere seem to only touch the topic as much as required to come to a decision but do not seem to make the process of identifying and qualifying easier. The guidelines and qualification laid down by the EU as to what qualifies as communication to the public is not found on this side of the law. Given the technological advancements in the field of communication, there is a need for this, now more than ever.
C-753/ 2018, Föreningen Svenska TonsättaresInternationellaMusikbyråu.p.a. (Stim) and Svenska artistersochmusikersintresseorganisationek. för. (SAMI) v Fleetmanager Sweden AB and Nordisk Biluthyrning AB, avaliable at: https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:62018CJ0753&qid=1586413987712&from=EN
Council Directive 2001/29, 2001 O.J. (L 167) (EU).
Council Directive 2006/115, 2006 O.J. (L 376) (EU)
Sam C. van Velze, Communication to a New Public?, A critical analysis of the CJEU’s ‘New Public’ criterion in European CopyrightLaw, available at: https://www.ivir.nl/publicaties/download/1744.pdf (last visited on 25th May 2020).
 C-160/15, GS Media BV vs. Sanoma Media Netherlands BV, ECL:EU:C:2016:644, available at: https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:62015CJ0160&from=EN
Case C-466/12, Nils Svensson and others v. Retriever Sverige AB, ECL:EU:C:2014:76, available at:https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:62012CJ0466&from=EN
 C-306/05, SGAE vs. Rafael Hotels SA, ECL:EU:C:2006:764, available at: https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:62005CJ0306&from=GA
Chijioke Ifeoma Okorie, Multi-sided Music Platforms and the Law; Copyright, Law and Policy in Africa,available at: https://books.google.co.in/books?id=7Qq5DwAAQBAJ&printsec=frontcover#v=onepage&q&f=false(Last visited in 1st June 2020);Also see Koelman K and Hugenholtz P, Online service provider liability for copyright infringement, Workshop on service provider liability, available at: https://pure.uva.nl/ws/files/3363649/602_wipo99.pdf(Last visited on 1st June 2020)
AIR 1989 Bom 331 (India), para 22
 (2008) 148 DLT 487 (India), para 6 & 7.