BREAKING: CJEU rules that hiring out of motor vehicles equipped with radio receivers does not constitute a communication to the public

Can a car leasing company – by leasing cars equipped with radio receivers – be considered a ‘user’ that performs a communication to the public?

This, in a nutshell, was at the heart of the referral from the Swedish Supreme Court to the Court of Justice of the European Union (CJEU) in Stim and Sami, C-753/18.

EU law, as interpreted by the CJEU, provides that a communication to the public may take place – in the manner envisaged by Article 3(1) of Directive 2001/29 (InfoSoc Directive) – when transmissions are made by means of technical equipment to a nearby public (e.g. in a hotel, café, rehabilitation centre, or a spa). Hotel operators carry out a “communication to the public” in light of Article 8(2) of Directive 2006/115 (Rental Rights Directive), when hotel rooms are equipped with phonograms available in digital or physical form and which can be played or intercepted (Phonographic Performance Ireland, C-162/10). Nonetheless, the CJEU also came to the contrary conclusion regarding transmission of phonograms in a dentist’s waiting room (Società Consortile Fonografici, C-135/10).

The Swedish Supreme Court was unsure how to treat the providers of rental cars. Thus, it asked the CJEU to clarify this matter.

A few months ago, Advocate General (AG) Szpunar advised [Katpost here] the CJEU that car rental companies do not perform a communication within the meaning of Article 3(1) of the InfoSoc Directive and Article 8(2) of the Rental and Lending Rights Directive.

This morning, the CJEU issued its judgment [currently only the press release available] and ruled that the hiring out of motor vehicles equipped with radio receivers does not constitute a communication to the public. Referring to recital 27 in the InfoSoc Directive, the CJEU noted 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”. This is also the case of the supply of a radio receiver forming an integral part of a hired motor vehicle, which makes it possible to receive, without any additional intervention by the leasing company, the terrestrial radio broadcasts available in the area in which the vehicle is located. That therefore differs from acts of communication by which service providers intentionally broadcast protected works to their clientele, by distributing a signal by means of receivers that they have installed in their establishment.

In view of the CJEU, there was therefore no need to examine whether such making available must be regarded as a communication to a ‘public’.