Licensing
Face the music T
Following a ruling by the Court of Justice of the European Union, Sam Price, Associate at Morton Fraser LLP, asks: are PPL and PRS now toothless when it comes to music licensing for dental surgeries?
he Court of Justice of the European Union (CJEU) recently ruled1 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 Societa’ 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 quali- fied – 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
“The CJEU concluded that patients in private dental surgeries did not constitute a ‘public’ for the purpose of the
Rental and Lending Directive” Sam Price
and Lending Directive), which requires all EU Member States (as a minimum standard) to provide copyright owners with a legal right to “equitable remu- neration” when their music is communicated to the public. Although the term “commu-
nication 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 copy- right holders the exclusive right to authorise or prohibit third parties from
72 Scottish Dental magazine
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, gener- ally 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 two reasons.
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.
REFERENCES
1 Societa’ Consortile Fonografici (SCF) v Marco Del Corso (case C-135/10)
2 Copyright, Designs and Patents Act 1988, section 19 (Infringe- ment 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.
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