The German Federal Court has delivered a judgment on whether the playing of background music at a dentist's was a "communication to the public" for the purposes of the German legislation implementing the Copyright Directive . Article 3(1) of the Copyright Directive states: "Member States shall provide authors with the exclusive right to authorise or prohibit any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them."
In the case, the dentist had cancelled his licence agreement with the relevant collecting society for music rights, which had previously granted him the right to play background music to customers in his waiting room. The collecting society maintained that he needed a licence to continue playing music in this way, and subsequently brought proceedings. The German Court gave judgment for the dentist, applying a 2012 decision of the Court of Justice of the European Union (CJEU) in doing so . The case before the CJEU concerned an essentially identical question to that before the German Court and it was found that there was no communication to the public for the purposes of Article 3(1) of the Copyright Directive.
The CJEU came to this conclusion on the basis that: (1) patients in a dentist's waiting room were a very specific group of persons and not "persons in general"; (2) their number was insignificant; (3) the broadcast would not affect the number of patients visiting that dentist – the quality/value for money of the dental treatment rather than the background music is, after all, the key driver here – and (4) the broadcasting was not a part of the dental treatment.
Whilst the German decision is consistent with EU law, EU law can be difficult to follow in this area. The "Italian dentist" case is often contrasted with the "Irish hotel" case , where, put very simply, the broadcasting of music in a hotel bedroom was held to be a communication to the public. The CJEU was able to distinguish the two cases, but given the fine margins, it is not surprising that cases concerning the meaning of 'communication to the public' continue to come before the courts.