Broadcasting of musical works as background music in public transport – Classification under EU copyright law
The evaluation of the use of musical works as background music in transport gains special significance in light of recent European Court of Justice (ECJ) decisions. The ruling of April 20, 2023 (Case C-775/21) sets new standards regarding the copyright qualification of such uses and affects a multitude of potential rights holders and collecting societies.
Background of the ECJ decision
The ECJ was faced with the question of whether the targeted transmission of musical works as background music in buses or other passenger transport vehicles constitutes a “communication to the public” within the meaning of Directive 2001/29/EC of the European Parliament and of the Council of May 22, 2001 on the harmonisation of certain aspects of copyright and related rights in the information society.
The responsibility for the initial case lay with a Hungarian operator who played music for passengers in her passenger transport vehicles. It was disputed whether separate copyright fees were payable for this practice.
Communication to the public – Significance and systematic legal classification
The core question revolved around the copyright term “communication to the public.” Under Union law, a communication is public if a work is made perceptible to an indeterminate group of people. The ECJ, in its consistent jurisprudence, not only considers the number of recipients but also their status as a new audience compared to the original licensing.
The targeted transmission of music in buses is directed at changing passengers and thus exceeds the narrow private framework. According to the ECJ, providing music for passengers fulfills the criterion of “communication to the public” because the passengers represent a new, constantly changing audience for whom the music is intentionally made accessible, not just incidentally.
Impacts for rights holders and users
For collecting societies and rights holders, this ruling strengthens their protective rights. Communication to the public is regularly linked to an obligation to pay separate fees. Operators of passenger transport vehicles providing music performances for their passengers must check whether the appropriate usage rights have been obtained and pay any applicable fees.
Legal demarcation and exceptions
While no communication to the public is typically assumed in domestic or purely family settings, this is much more likely in commercial contexts such as public transport. An exception exists only if a use is so negligible that it is considered de minimis. However, such exceptions are rarely assumed in the context of regular transport and targeted music playback.
Significance for practice and international perspective
The ECJ ruling not only impacts operators of buses or other transport vehicles within the European Union but also serves as a signal for cross-border issues and harmonisation trends in European copyright law.
The decision particularly concerns scenarios where music is purposefully played to customers or passengers through digital transmission technologies. The type of access, as well as the possibility for users to individually select music pieces, plays a crucial role.
Outlook and ongoing legal development
The ruling is part of a series of decisions where the ECJ further outlines the scope of the concept of communication to the public – considering both the legitimate interests of rights holders and the needs of businesses in passenger transport and other service sectors.
The process also illustrates that the legal situation remains complex and that future developments – especially in the field of new transmission technologies and digital services – require ongoing legal accompaniment. Nonetheless, the presumption of innocence in potential controversial cases remains, and the decision must always be considered in the context of the individual case.
For legal questions regarding the use of musical works in public transport or copyright classifications of new business models, the lawyers at MTR Legal offer comprehensive legal support – both nationally and internationally.
