In two judgements of 15 March in Marco Del Corso (C-135/10) and Phonographic (C-162/10) cases, the Court of Justice of the European Union has brought further precisions
to the notion of "communication to the public".
In Marco Del Corso, the Court indicates that account must be taken of several complementary criteria, which are not autonomous and are interdependent:
1° the role of the user: he makes a communication to the public 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;
2° the term "public" refers to an indeterminate number of potential listeners and a fairly large number of persons;
3° the profit-making nature of "communication to the public" is also a relevant criterion.
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.
The same criteria are used in Phonographic, leading to an opposite conclusion to the one in the Marco Del Corso case.
Whereas in Marco Del Corso, free broadcast of music in a dental practice is not regarded by the Court as a new communication to the public, in Phonographic, it considers on the contrary that the making available of music by a hotel operator in guest bedrooms falls within the ambit of this notion.
Indeed, according to the Court, if a dentist 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, the making available of music in guest bedrooms of a hotel constitutes an additional service which has an influence on the hotel's standing and, therefore, on the prices and the attractiveness for the clients.
The Court attempted to strike a balance between the relevant elements. As a consequence, similar situations (as waiting music of phone centres or music in companies' open spaces) now raise the same question.
