Società Consortile Fonografici (SCF) v Marco Del Corso.
Date: 2012-03-15
38. The TRIPS Agreement and the WPPT were signed by the European Union and approved by Decisions 94/800 and 2000/278 respectively. Consequently, that agreement and treaty bind the institutions of the European Union and the Member States.
39. Moreover, according to the settled case-law of the Court, the provisions of agreements concluded by the Union form an integral part of the Union legal order (Case 181/73 Haegeman  [1974] ECR 449, paragraph 5; Case 12/86 Demirel [1987] ECR 3719, paragraph 7, and Case C‑301/08 Bogiatzi  [2009] ECR I‑10185, paragraph 23) and are therefore applicable in the Union.
40. The TRIPS Agreement and the WPPT are such agreements.
41. As regards the Rome Convention, it must be pointed out, first, that the European Union is not a contracting party to that convention and, second, that it cannot be regarded as having taken the place of its Member States as regards its application, if only because not all of those States are parties to that convention (see, by analogy, Case C-188/07 [2008] ECR I-4501, paragraph 85).
42. Consequently, the provisions of the Rome Convention do not form part of the legal order of the European Union.
43. As regards, second, the question whether individuals are entitled to rely directly on the provisions of the TRIPS Agreement and the WPPT, it must be observed that, according to the case-law of the Court of Justice, it is not sufficient that they are part of the legal order of the Union. Those provisions must also appear, as regards their content, to be unconditional and sufficiently precise and their nature and broad logic must not preclude their being so relied on (see, to that effect, Demirel , paragraph 14; Case C-162/96 Racke  [1998] ECR I‑3655, paragraph 31, and Case C‑344/04 IATA and ELFAA [2006] ECR I-403, paragraph 39).
46. Moreover, the Court has already held that, having regard to their nature and structure, the provisions of the TRIPs Agreement do not have direct effect. Those provisions are not, in principle, among the rules in the light of which the Court is to review the legality of measures of the Community institutions under the first paragraph of Article 230 EC and are not such as to create rights upon which individuals may rely directly before the courts by virtue of European Union law (see, to that effect, Case C-149/96 Portugal  v Council  [1999] ECR I-8395, paragraphs 42 to 48; Joined Cases C-300/98 and C-392/98 Dior and Others  [2000] ECR I‑11307, paragraph 44, and Case C-245/02 Anheuser-Busch [2004] ECR I-10989, paragraph 54).
50. Accordingly, although the European Union is not a contracting party to the Rome Convention, it is none the less required, under Article 1(1) of the WPPT, not to stand in the way of the obligations of the Member States under that convention. Accordingly, that convention has indirect effects within the European Union.
51. Third, as regards the question of the relationship between the concept of ‘communication to the public’ in the TRIPS Agreement, the WPPT and the Rome Convention and that in Directives 92/100 and 2001/29, it must be recalled that, according to settled case-law, European Union legislation must, so far as possible, be interpreted in a manner that is consistent with international law, in particular where its provisions are intended specifically to give effect to an international agreement concluded by the European Union (see, inter alia, Case C‑341/95 Bettati [1998] ECR I‑4355, paragraph 20, and Case C-306/05 SGAE [2006] ECR I-11519, paragraph 35).
52. In that regard, it is common ground that, as recital 15 in the preamble to Directive 2001/29 makes clear, that directive is intended to implement a number of the Union’s new obligations under the WCT and the WPPT, which are considered, according to the same recital, to update the international protection for copyright and related rights significantly. In those circumstances, the concepts contained in that directive must be interpreted, as far as is possible, in the light of those two Treaties (see, to that effect, Case C-456/06 Peek & Cloppenburg  [2008] ECR I‑2731, paragraph 31).
53. Moreover, it follows from recital 10 of Directive 92/100 that the legislation of the Member States should be approximated in such a way as not to conflict with the international conventions on which many Member States’ laws on copyright and related rights are based.
54. As that directive is intended to harmonise certain aspects of the law on copyright and related rights in the field of intellectual property in compliance with the relevant international agreements such as, inter alia, the Rome Convention, the TRIPS Agreement and the WPPT, it is supposed to establish a set of rules compatible with those contained in those agreements.
55. It follows from all those considerations that the concepts appearing in Directives 92/100 and 2001/29, such as ‘communication to the public’ must be interpreted in the light of the equivalent concepts contained in those international agreements and in such a way that they are compatible with those agreements, taking account of the context in which those concepts are found and the purpose of the relevant provisions of the agreements as regards intellectual property.
56. Having regard to the foregoing considerations, the answer to the first to third questions is:
– the provisions of the TRIPS Agreement and the WPPT are applicable in the legal order of the European Union,
– as the Rome Convention does not form part of the legal order of the European Union it is not applicable there; however, it has indirect effects within the European Union
– individuals may not rely directly either on that convention or on the TRIPS Agreement or the WPPT;
– the concept of ‘communication to the public’ must be interpreted in the light of the equivalent concepts contained in the Rome Convention, the TRIPS Agreement and the WPPT and in such a way that it is compatible with those agreements, taking account of t he context in which those concepts are found and the purpose of the relevant provisions of the agreements as regards intellectual property.
The fourth and fifth questions
Preliminary observations
59. As is clear from the explanatory memorandum to the Proposal for Directive 2001/29 (COM(97) 628), confirmed by recital 25 of that directive, making available to the public, for the purposes of that provision, is intended to refer to ‘interactive on-demand transmissions’ characterised by the fact that members of the public may access them from a place and at a time individually chosen by them.
61. However, according to case-law, in order to provide the national court with an answer which will be of use to it and enable it to determine the case before it, it is for the Court of Justice, if necessary, to reformulate the questions referred to it (Case C‑286/05 Haug  [2006] ECR I‑4121, paragraph 17, and Case C‑420/06 Jager  [2008] ECR I‑1315, paragraph 46).
67. As regards the division of jurisdiction between the European Union judicature and national courts, it is in principle for the national court to determine whether the factual conditions triggering the application of a European Union rule are fulfilled in the case pending before it, while the Court, when giving a preliminary ruling, may, where appropriate, provide clarification to guide the national court in its interpretation (see, to that effect, Case C‑424/97 Haim [2000] ECR I‑5123, paragraph 58, and Joined Cases C-22/08 and C-23/08 Vatsouras and Koupatantze  [2009] ECR I-4585, paragraph 23).
73. Article 8(2) of Directive 92/100 requires Member States to provide a right in order to ensure that a single equitable remuneration is paid by the user if a phonogram published for commercial purposes, or a reproduction of such phonogram, is used for broadcasting by wireless means or for any communication to the public and to ensure that this remuneration is shared between the relevant performers and phonogram producers. That provision is inspired by Article 12 of the Rome Convention the wording of which it likewise reproduces almost verbatim (Case C‑245/00 SENA  [2003] ECR I-1251, paragraph 35).
74. It is clear from a comparison of Article 3(1) of Directive 2001/29 and Article 8(2) of Directive 92/100 that the concept of communication to the public appearing in those provisions is used in contexts which are not the same and pursue objectives which, while similar, are none the less different to some extent.
75. Under Article 3(1) of Directive 2001/29, authors have a right which is preventive in nature and allows them to intervene, between possible users of their work and the communication to the public which such users might contemplate making, in order to prohibit such use. On the other hand, under Article 8(2) of Directive 92/100, performers and producers of phonograms have a right which is compensatory in nature, which is not liable to be exercised before a phonogram published for commercial purposes, or a reproduction of such a phonogram, has been used for communication to the public by a user.
76. It follows that Article 8(2) of Directive 92/100, on the one hand, requires an individual interpretation of the concept of communication to the public. The same applies as regards the identity of the user and the question of the use of the phonogram at issue.
78. Thus, in order to assess whether a user is making a communication to the public within the meaning of Article 8(2) of Directive 92/100, in accordance with the need for an individual approach noted in paragraph 76 of the present judgment, the situation of a specific user and of all the persons to whom he communicates the protected phonograms must be assessed.
79. For the purposes of such an assessment, account must be taken of several complementary criteria, which are not autonomous and are interdependent. Consequently, they must be applied individually and in the light of their interaction with one another, given that in different specific situations, they may be met to varying degrees.
82. First, the Court has already stressed the indispensable role of the user. Thus, the Court has held that the operator of a hotel or public house makes a communication to the public within the meaning of Article 3(1) of Directive 2001/29 when it intervenes, in full knowledge of the consequences of its action, to give access to a broadcast containing the protected work to its customers. Without its intervention the customers cannot enjoy the works broadcast, even though they are physically within the broadcast’s catchment area (see, to that effect, SGAE , paragraph 42, and Joined Cases C-403/08 and C-429/08 Football Association Premier League and Others [2011] ECR I-0000, paragraph 195).
84. In that regard, the Court has held that the term ‘public’ within the meaning of Article 3(1) of Directive 2001/29 refers to an indeterminate number of potential listeners, and, in addition, implies a fairly large number of persons (see, to that effect, Case C‑89/04 Mediakabel [2005] ECR I‑4891, paragraph 30; Case C‑192/04 Lagardère Active Broadcast  [2005] ECR I‑7199, paragraph 31, and SGAE , paragraphs 37 and 38).
85. As regards, to begin with, the ‘indeterminate’ nature of the public, the Court has observed that, according to the definition of the concept of ‘communication to the public’ given by the WIPO glossary, which, while not legally binding, none the less sheds light on the interpretation of the concept of public, it means ‘making a work … perceptible in any appropriate manner to persons in general, that is, not restricted to specific individuals belonging to a private group’.
86. Next, as regards, the criterion of ‘a fairly large number of people’, this is intended to indicate that the concept of public encompasses a certain de minimis  threshold, which excludes from the concept groups of persons which are too small, or insignificant.
88. Third, in paragraph 204 of the judgment in Football Association Premier League and Others , the Court held that it is not irrelevant that a ‘communication’ within the meaning of Article 3(1) of Directive 2001/29 is of a profit-making nature.
91. It is thus understood that the public which is the subject of the communication is both targeted by the user and receptive, in one way or another, to that communication, and not merely ‘caught’ by chance.
97. 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.
98. The patients of a dentist visit a dental practice with the sole objective of receiving treatment, as the broadcasting of phonograms is in no way a part of 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.