Last week, the German Federal Supreme Court handed down a decision concerning a dentist playing background music from broadcasting stations in the waiting area of his practice (I ZR 14/14). If this sounds familiar to you it is because the CJEU decided about a nearly identical case on the 15 March 2012 (C-135/10).

In the CJEU case, the “SCF”, the Italian collecting society for music rights, sued a dentist for playing background music from broadcasting stations in his practice without paying a license fee. The CJEU decided in this case that playing music from broadcasting stations within private dental practices is not “communication to the public” thus a license fee cannot be required. The Court stated that such a broadcast is not public, because the number of persons present in a dental practice at the same time is, in general, very limited. Furthermore, the broadcast is not of a profit-making nature, since patients visit a dental practice with the sole objective of receiving treatment and listening to music is not part of dental treatment.

With reference to this CJEU case, the German dentist in the current case had cancelled his licence agreement with the “GEMA”, the German collecting society for music rights, which had granted him the right to play background music from broadcasting stations in his waiting area. The dentist argued that the CJEU decision clearly stated that playing music at a dentists waiting area was not “communication to the public” and that he therefore did not need a license to do so.

The GEMA did not agree with this perspective and sued the dentist for a payment of a license fee for the background music.

The German Federal Supreme Court sides with the dentist. The judges state that they are bound by the CJEUs interpretation of EU law and thus have to interpret German law accordingly. As all decisive factors in the German case are identical to the case before the CJEU in 2012 the court deems itself bound to decide that the dentist’s use of music was not “communication to the public” and therefore did not require payments to the author or the GEMA.

Indeed, as the factual overlap with the SCF case was truly encompassing, the German Federal Supreme Court had no choice as to decide as it did. However, it will nevertheless be interesting to read the full reasoning for the judgment (currently only a short reasoning in the press release is available) to see whether the German Federal Supreme Court only applied the interpretation of “communication to the public” of the CJEU to Germany for the current case or whether it indicated that this interpretation has to be used everywhere in German copyright law.

Originally, the German understanding of “communication to the public” had a different scope as the regulated “communication to the public” in the European law. The “communication to the public” concept is also not only used in the German Copyright Act in norms that are governed by European law, but also in norms that are not yet harmonized. Whether the “communication to the public” concept has to be interpreted identically according to the EU interpretation throughout the whole German Copyright Act, regardless of whether it is used in harmonized law or not, is a highly debated question in current German copyright law. It remains to be seen whether this decision will put an end to this debate.