Music at the dentist should be free: Italian Supreme Court

Società Consortile Fonografici (SCF), an Italian collecting society, brought an action before the Turin District Court against Marco Del Corso, an Italian dentist, seeking a declaration that his broadcasting of background music in his private dental practice constituted “communication to the public”.

After Del Corso appealed against the decision, the Turin Court of Appeal requested a preliminary ruling from the CJEU asking for clarification on the interpretation of “communication to the public” under article 8(2) of Directive 92/100/CEE and whether an act of transmission made in a private dental practice was caught by this provision and thus entitled the right owner (SCF) to request payment of “single equitable” remuneration.

First, the CJEU stated that “communication to the public” implies a fairly large number of people and cannot be restricted to specific individuals in a private group (de minimis threshold), as in the case of people listening to music in the waiting room of a private dental practice.

Second, in such a case patients do not have an active choice, since the broadcasting is neither part of the dental treatment, nor of a profit-making nature.

Third, the broadcast is not liable to have an impact on the income of the dentist: it does not of itself increase the number of patients using the practice or the price of the treatments provided.

For these reasons, the CJEU concluded that a dentist such as Del Corso was not making a “communication to the public” within the meaning of article 8(2) of the directive, since such concept does not cover the broadcasting of music within private dental practices, free of charge, for the benefits of patients who enjoy it without any active choice on their part. It also follows that the requirement for the payment of the equitable remuneration is not met.