Face the music
The Court of Justice of the European Union (CJEU) recently ruled 1 that Italian dentists who play music free of charge in their private surgeries are not liable to pay licence fees to the Italian collecting society Societá Consortile Fonografici (SCF).
In the wake of the SCF ruling, the UK’s two collection agencies, the PPL and PRS, both hastily issued statements asserting that the case did not impact on their right to collect licence fees from UK dentists.
Does that view stand up to independent legal scrutiny? In my view, the answer is a qualified yes. I will return to the remaining point of likely practical interest – why and to what extent that “yes” is qualified – at the end of this article to encourage the reader to bear with me through the following short analysis of the relevant UK law.
The SCF case considered whether playing music in dental surgeries for the benefit of patients constituted a “communication to the public” for the purpose of an EU Directive (the Rental and Lending Directive), which requires all EU Member States (as a minimum standard) to provide copyright owners with a legal right to “equitable remuneration” when their music is communicated to the public.
Although the term “communication to the public” has previously been interpreted broadly by the CJEU to include activities such as providing radios in hotel rooms or showing films in a pub, the CJEU concluded that patients in private dental surgeries did not constitute a “public” for the purpose of the Rental and Lending Directive.
Relevant factors included the limited number of patients present in a practice at the same time and the fact that
broadcasting music to patients was not considered profit-making in nature, because it could not reasonably be expected to impact on a dentist’s income.
Existing UK copyright law in this area goes further than the minimum EU requirements by giving copyright holders the exclusive right to authorise or prohibit third parties from publicly performing their music.
The PPL and PRS’s right to claim royalties when music is played in public derive from this exclusive right under UK copyright law known as the “public performance right” 2, which has not been harmonised at the European level.
For the purposes of the public performance right, a large volume of UK case law, developed over close to a century, indicates that, generally speaking, only playing music in the family or domestic context would not constitute performance “in public”.
Accordingly, while to the best of my knowledge, the specific scenario of a dental surgery has not been considered by the UK courts, existing case law strongly suggests this setting would be considered “in public” under English law.
Several legal commentators have speculated that the SCF decision may lead to a legal challenge to the UK position. The possibility of a challenge cannot be discounted and many will feel that the CJEU’s specific reasoning in relation to dental practices should be given cognisance in the UK courts. My personal view, however, is that any challenge faces an uphill struggle for
Firstly, because of the large volume of existing UK cases giving the phrase “in public”
a wider meaning; and secondly, because I think that there is an evident distinction to be drawn between the meaning of the phrases “the public”
and “in public”, which may support giving them differing scopes, even within the same legislation.
In conclusion, therefore, while the SCF case may have brought into sharp relief the question as to whether giving UK copyright owners the ability to monetise the playing of their music in settings like a dental practice is justified, it has not served to invalidate PPL and PRS’s current position.
1 Societá Consortile Fonografici (SCF) v Marco Del Corso (case C-135/10)
2 Copyright, Designs and Patents Act 1988, section 19 (Infringement by performance, showing or playing of work in public).
About the author
Sam Price is an Associate at Morton Fraser LLP specialising in Intellectual Property, Technology and Commercial Contracts.