On June 18, 2015, the First Civil Senate of the Federal Court of Justice (BGH), which is responsible, among other things, for copyright law, ruled that the playing of background music in dental practices generally does not constitute a remunerable public performance within the meaning of the Copyright Act.
The plaintiff is the Society for Musical Performing and Mechanical Reproduction Rights (GEMA). It exercises the rights granted to it by composers, lyricists, and music publishers for the use of musical works (with or without lyrics). It is authorized by Verwertungsgesellschaft Wort (VG Wort) and Gesellschaft zur Verwertung von Leistungsschutzrechten (GVL) to assert the rights and claims of authors of literary works (VG Wort), as well as performing artists and phonogram producers (GVL), managed by these entities. The defendant is a dentist who operates a dental practice. Radio broadcasts are transmitted as background music in the practice's waiting area.
On august 6, 2003, the parties entered into a copyright license agreement, whereby the plaintiff granted the defendant the right to utilize the repertoire of GEMA, VG Wort, and GVL for the broadcast of radio programs in his practice, in exchange for a fee.
The defendant declared the immediate termination of the license agreement to the plaintiff on December 17, 2012. He justified this by asserting that, according to the judgment of the Court of Justice of the European Union of March 15, 2012 (C-135/10), the playing of background music in dental practices does not constitute a public performance.
The plaintiff sued the defendant for payment of the remuneration amounting to €113.57, owed for the period from June 1, 2012, to May 31, 2013.
The District Court ordered the defendant to pay €61.64 plus interest and dismissed the remainder of the claim. The plaintiff's appeal was unsuccessful. The Regional Court held that the plaintiff could only claim a pro-rata remuneration from the defendant for the period from June 1, 2012, to December 16, 2012, amounting to €61.64. The license agreement had been terminated by the defendant's extraordinary notice of termination with effect from December 17, 2012.
With its appeal, which was admitted by the Regional Court, the plaintiff sought to compel the defendant to pay the remuneration of €51.93 for the period from December 17, 2012, to May 31, 2013. The appeal was unsuccessful. The plaintiff cannot claim the remaining remuneration because the license agreement was terminated by the defendant's extraordinary notice of termination with effect from December 17, 2012. The defendant was entitled to an extraordinary termination because the basis of the license agreement had ceased to exist due to the judgment of the Court of Justice of the European Union of March 15, 2012.
The parties concluded the license agreement on august 6, 2003, based on the then-prevailing understanding that jurisprudence considered the loudspeaker transmission of radio broadcasts in doctors' waiting rooms to be a public performance – subject to remuneration – within the meaning of Section 15 (3) of the German Copyright Act (UrhG). This was deemed to infringe, on the one hand, the exclusive right of authors of musical or literary works to make radio broadcasts of their works publicly perceptible via loudspeakers (Section 22 Sentence 1 Case 1 UrhG) and, on the other hand, to establish a claim for equitable remuneration for performing artists insofar as broadcasts of their performances are thereby made publicly perceptible (Section 78 (2) No. 3 Case 1 UrhG).
It can be inferred from the judgment of the Court of Justice of the European Union of March 15, 2012, that a public performance within the meaning of Art. 3 para. 1 of Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society and Art. 8 para. 2 sentence 1 of Directive 2006/115/EC on rental and lending rights and on certain related rights in the field of intellectual property, at least requires that the performance is directed at an indeterminate number of potential recipients and a significant number of people. The Court of Justice of the European Union further ruled in this judgment that these conditions are generally not met when a dentist plays radio broadcasts as background music for patients in their practice.
The Federal Court of Justice is bound by the interpretation of Union law by the Court of Justice of the European Union and must interpret the corresponding provisions of national law in conformity with the directive. Furthermore, the facts to be assessed by the Federal Court of Justice were consistent in all essential respects with the facts that had been presented to the Court of Justice of the European Union in its decision.The Federal Court of Justice has therefore ruled that the playing of radio broadcasts in dental practices is generally – and thus also in the defendant's case – not public and therefore not subject to remuneration.
Judgment of the Federal Court of Justice of June 18, 2015 – Ref. No.: I ZR 14/14
Lower Courts:
District Court Düsseldorf – Judgment of October 17, 2013 – 57 C 12732/12
Regional Court Düsseldorf – Judgment of April 4, 2013 – 23 S 144/13, juris
Source: Press Release of the Federal Court of Justice
Goldberg Attorneys 2015
Attorney Michael Ullrich, LL.M. (Information Law)
Specialist Attorney for Information Technology Law
E-mail: m.ullrich@goldberg.de
