The International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations, adopted at Rome, is not applicable in the Union, for it does not form part of the legal order of the Union. It does, however, have indirect effects in that, under Article 1(1) of the World Intellectual Property Organisation Performances and Phonograms Treaty, it is required not to stand in the way of the obligations of the Member States under that convention.

The concept of ‘communication to the public’ which appears in Directive 92/100 on rental right and lending right and on certain rights related to copyright in the field of intellectual property and Directive 2001/29 on the harmonisation of certain aspects of copyright and related rights in the information society must be interpreted in the light of the equivalent concepts contained in the Agreement on Trade-Related Aspects of Intellectual Property Rights, which constitutes Annex 1C to the Agreement establishing the World Trade Organisation (TRIPS Agreement), the World Intellectual Property Organisation Performances and Phonograms Treaty and the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations, adopted at Rome.

The concept of ‘communication to the public’ for the purposes of Article 8(2) of Directive 92/100 on rental right and lending right and on certain rights related to copyright in the field of intellectual property must be interpreted as meaning that it does not cover the broadcasting, free of charge, of phonograms within private dental practices engaged in professional economic activity, for the benefit of patients of those practices and enjoyed by them without any active choice on their part. Therefore such an act of transmission does not entitle the phonogram producers to the payment of remuneration.

A dentist’s patients generally form a very consistent group of persons and thus constitute a determinate circle of potential recipients, as other people do not, as a rule, have access to treatment by that dentist. Consequently, they are not ‘persons in general’. As regards, further, the number of persons to whom the same broadcast phonogram is made audible by the dentist, that 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. Finally, 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. A dentist’s patients visit a dental practice with the sole objective of receiving treatment, the broadcasting of phonograms being in no way inherent in dental treatment. They have access to certain phonograms by chance and without any active choice on their part, according to the time of their arrival at the practice and the length of time they wait and the nature of the treatment they undergo. Accordingly, it cannot be presumed that the usual customers of a dentist are receptive as regards the broadcast in question. Consequently such a broadcast is not of a profit-making nature.

(see paras 95-99, 102, operative part 2)