The purpose of this article is to examine the present legal position regarding the playing of music in dental waiting rooms and treatment rooms. It will begin by examining recent European jurisprudence, touch on domestic UK law, and explain what the risks are for dentists who are considering ceasing to pay UK collections agencies.
Many dentists will be aware of the 2012 European Court of Justice case of Societa Consortile Fonografici (SCF) v Del Corso [2012] Bus. L.R. 1870. This was the result of an Italian dentist’s refusal to pay royalties for playing music in his dental surgery to the Italian collections agency. In that case, the collections agency lost. The court held that the patients of a dentist were not “the public” in terms of the relevant European Directives.
Does this then mean that dentists are free to cease paying UK royalty collection agencies? Not without some risk, for two reasons.
Firstly, the decision in Del Corso is arguably narrow and confined to one particular Directive. Secondly, there is some uncertainty owing to the imprecise nature of the term “the public” in the relevant sections of the Copyright, Designs and Patents Act 1988, couple with the court’s clear statement that it was for domestic courts to make the appropriate findings in fact in any particular case.
To explain the first point, some background is required. The judgment in Del Corso derived from a reference by an Italian court which was focussing on the terms of article 8(2) of Directive 92/100/EC (the “Remuneration Directive”). In coming to their conclusion on the interpretation of this article, the court made reference to their previous jurisprudence on a similar article – 3(1) of Directive 2001/29/EC (the “Exclusive Directive”).
The court held that the playing of music to patients in a dental studio did not engage the Remuneration Directive owing to the fact that there was no “communication to the public” (Del Corso, para. 101). The court in Del Corso did not, however, make an explicit ruling in relation to the Exclusive Directive. UK collections agencies may well leap upon this point to argue that they remain entitled to collect royalties, supported by the fact that the court clearly states that there are different considerations when examining a Remuneration Directive case and an Exclusive Directive case.
However, to do so would be ignoring the fact that the court clearly sets out the tripartite test to be applied under the Exclusive Directive. The relevant considerations are:-
- the role of the user;
- the definition of the “public”; and
- analysis of whether the communication is profit-making.
With reference to parts 1. and 3., a dental surgery is not a hotel or a pub (Sociedad General de Autores y Editores de Espana (SGAE) v Rafael Hoteles [2007] Bus. L.R. 521, Football Association Premier League Limited v QC Leisure [2012] Bus. L.R. 1321). Any communication of protected work by a dental surgery would likely not be for profit, as it would be in a hotel or pub (Del Corso, para. 97). The question of whether or not the music is profit generating is very important. See, for instance, the case of Phonographic Performance (Ireland) Limited v Ireland [2012] Bus. L. R. D113. In that case it was held that the profit making nature (in that it attracted guests to the hotel) of allowing hotel guests access to works was relevant.
With regard to the definition of the “public” in the context of the Exclusive Directive, the court has described certain elements of the concept of the “public”. They have held that it relates to an “indeterminate number of potential listeners” which are a “fairly large number of persons” (Del Corso, para. 84). This definition restricts “specific individuals belonging to a private group” and “groups of persons which are too small, or insignificant” from the definition (Del Corso, paras. 85 and 86). In ascertaining the number of people, it is important to establish “how many people have access to the same work at the same time”, and also how many have access to the same work “in succession” (Del Corso, para. 87).
Whether or not a dental waiting room is caught by this would be a question of fact.
Secondly, the definition of “the public” in UK statute and case law has not been clearly defined. A blurry image of the public may be advantageous, for instance allowing courts more freedom to mould the definition to fit changing consumer patterns and increase in the spread of works via the internet. However, it also means that there is no clear answer as to whether a UK court would consider patients in a dental waiting room “the public” in terms of UK law.
The full effect of the decision in Del Corso on the collection of royalties in the UK may only be understood when a case is brought. This may occur if a dentist (or potentially other persons in similar positions) decide to cease paying royalties. Owing to the high stakes for UK royalties collection agencies, it would appear likely that this would involve appeals to higher courts should an initial decision go against them.
This article is for general information only. Nothing in this article should be taken as legal advice. If you have any queries on the content of this article please contact us.
