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Music at the dentist should be free: Italian Supreme Court


Julia Holden and Giulia Cellerini

On September 11, the Supreme Court of Cassation in Italy handed down its ruling in Società Consortile Fonografici v Marco Del Corso, a case that a few years ago resulted in an important judgment by the Court of Justice of the European Union (CJEU) on copyright law and, in particular, on the interpretation of the concept of “communication to the public” and rights of compensation.

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.

"The Supreme Court highlighted that what the CJEU stated is that no act of communication to the public can be identified in the case at hand."

When the case went back to national courts, the appeals court rejected the appeal, applying the CJEU’s ruling.

The SCF appealed against the ruling to the Supreme Court, whose judgment was issued three years after the CJEU’s ruling. SCF’s main claim was based on a matter of law and the supposed violation of EU law and case law, on the grounds that, in SCF’s view, the CJEU had been inconsistent with its previous position on the matter.

The Supreme Court declared this plea inadmissible (and unacceptable): national courts are obliged to apply the principle of law issued by the CJEU, since the CJEU is the sole body entitled to give an interpretation of EU law. Consequently, it is impossible for the Supreme Court to question the part of the national judgment which fully reproduces and applies the CJEU ruling.

Second, SCF affirmed that article 8(2) of the directive actually sets forth only a minimum level of protection, leaving member states the chance to offer a higher level of protection. Such higher level would be provided by article 73 bis of the Italian Copyright Statute, according to which right owners are entitled to a remuneration even though the act of communication to the public is not of a profit-making nature.

The Supreme Court highlighted that what the CJEU stated is that no act of communication to the public can be identified in the case at hand. Therefore, lacking any kind of communication to the public, article 73 bis would not be applicable, which itself implies communication to the public, even if free of charge. In other words, the appeals court implicitly rejected such a plea as it deemed it was covered by the answers provided with the other pleas.

In conclusion, it would appear that with this decision the Supreme Court has reaffirmed the supremacy of the CJEU and clarified the concept of “communication to the public” by strengthening the interpretation of one of its key features.

Julia Holden is a partner at Trevisan & Cuonzo. She can be contacted at: jholden@trevisancuonzo.com

Giulia Cellerini is an associate at Trevisan & Cuonzo. She can be contacted at: gcellerini@trevisancuonzo.com

Julia Holden, Giulia Cellerini, copyright, CJEU, music, dentist, SCF, Società Consortile Fonografici v Marco Del Corso,


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