In the order n.2468 of 8 February 2016, the Italian “Court of Cassation” confirms the need that national Courts transpose the content of the judgment of the Court of Justice of 15 March 2012 (C-135/10), according to which, in the case of broadcasting of music in a dental office, you are not in the presence of a public which justifies the application of articles 73 and 73 bis of the copyright law and, therefore, no charge is due to the artist or to the producer of phonograms for the broadcast of music in its dental office.
Article 73(1) of the Italian Law on copyright, provides:
‘Irrespective of the royalties for distribution, rental and lending to which they are entitled, producers of phonograms, as well as performers whose performance has been fixed or reproduced on phonograms, shall be entitled to receive remuneration for the use for profit of the phonograms, by means of cinematography, radio and television broadcasting, including communication to the public, via satellite, at public dances, in public establishments and on the occasion of any other public use of the phonograms themselves. It is for the producer to exercise that right, sharing the remuneration with the performers concerned.’
Music broadcasting copyright
Article 73 bis of the Law on copyright provides:
- The performers and producer of the phonogram of which use has been made shall be entitled to equitable remuneration even where the use to which Article 73 refers was not for profit.
- In the absence of agreement to the contrary between the parties, such remuneration is determined, paid out and distributed according to the provisions of the [implementing rules for the amended Law on copyright].
The Court of Cassation specifies that “The dictum of the Court of Justice constitutes a rule applicable to the national Court in each stage and level of the trial proceeding”: the judgments of the Court of Justice must be considered as source of Community law, in the sense that they define the meaning and indicate the limits of applications of the law.
The Court of Justice, in its judgment C-135/10, considered that the small number of people inside the dental office cannot be considered public, as well as that the lack of economic significance of the broadcasting of music cannot be considered communication to the public.
Music broadcasting copyright
As regard to the concept of public, the Court of Justice (C-135/10, paragraph 96) specified that: “as regards the number of persons to whom the same broadcast phonogram is made audible by the dentist, it must be held that, in the case of the patients of a dentist, the number of persons is not large, indeed it is insignificant, given that the number of persons present in his practice at the same time is, in general, very limited. Moreover, although there are a number of patients in succession the fact remains that, as those patients attend one at a time, they do not generally hear the same phonograms, or the broadcast phonograms, in particular”.
Moreover (paragraph 97-99 of the judgment of the Court of Justice):
“Finally, it cannot be disputed that, in a situation such as that in the main proceedings, a dentist who broadcasts phonograms, by way of background music, in the presence of his patients cannot reasonably either expect a rise in the number of patients because of that broadcast alone or increase the price of the treatment he provides. Therefore, such a broadcast is not liable, in itself, to have an impact on the income of that dentist. Finally, it cannot be disputed that, in a situation such as that in the main proceedings, a dentist who broadcasts phonograms, by way of background music, in the presence of his patients cannot reasonably either expect a rise in the number of patients because of that broadcast alone or increase the price of the treatment he provides. Therefore, such a broadcast is not liable, in itself, to have an impact on the income of that dentist. Consequently such a broadcast is not of a profit-making nature, and thus does not fulfil the criterion”