On 18 June 2015, the First Civil Senate of the Federal Court of Justice (BGH), which is responsible, inter alia, for copyright law, ruled that the reproduction of background music in dental practices does not generally constitute public communication - subject to remuneration - within the meaning of the Copyright Act.
The plaintiff is the Society for Musical Performing and Mechanical Reproduction Rights (GEMA). It administers the rights granted to it by composers, lyricists and music publishers to use works of musical art (with or without lyrics). It is authorised by the collecting society Verwertungsgesellschaft Wort (VG Wort) and the society for the exploitation of neighbouring rights (Gesellschaft zur Verwertung von Leistungsschutzrechten - GVL) to assert the rights and claims of authors of linguistic works (VG Wort) and performing artists and producers of phonograms (GVL) administered by the latter. The defendant is a dentist and runs a dental practice. Radio broadcasts are transmitted as background music in the waiting area.
On 6 August 2003, the parties concluded a copyright licence agreement by which the plaintiff granted the defendant the right to use the repertoire of GEMA, VG-Wort and GVL for the reproduction of radio broadcasts in his practice against payment of a royalty.
The defendant gave the plaintiff notice of termination of the licence agreement without notice on 17 December 2012. The reason given for the termination was that the reproduction of background music in dental practices did not constitute communication to the public according to the judgment of the Court of Justice of the European Union of 15 March 2012 (C-135/10).
The plaintiff brought an action against the defendant for payment of the remuneration of €113.57 owed for the period from 1 June 2012 to 31 May 2013.
The district court ordered the defendant to pay € 61.64 plus interest and dismissed the rest of the action. The plaintiff's appeal was unsuccessful. The District Court held that the plaintiff could only claim payment of a pro rata remuneration for the period from 1 June 2012 to 16 December 2012 in the amount of €61.64 from the defendant. The licence agreement had been terminated by the defendant's termination without notice with effect from 17 December 2012.
With her appeal, which was allowed by the Regional Court, the plaintiff sought to have the defendant ordered to pay the remuneration of € 51.93 for the period from 17 December 2012 to 31 May 2013. The appeal was unsuccessful. The plaintiff cannot claim the remaining remuneration because the licence agreement was terminated by the defendant's termination without notice with effect from 17 December 2012. The defendant was entitled to terminate without notice because the basis of the licence agreement ceased to exist as a result of the judgment of the Court of Justice of the European Union of 15 March 2012.
The parties had concluded the licence agreement on 6 August 2003 on the assumption, which was correct at the time, that case law considered the loudspeaker transmission of radio broadcasts in waiting rooms of doctors' surgeries to be a communication to the public - subject to remuneration - within the meaning of § 15.3 UrhG. 3 UrhG, which, on the one hand, interferes with the exclusive right of authors of musical or linguistic works to make radio broadcasts of their works publicly perceptible through loudspeakers (§ 22 sentence 1 case 1 UrhG) and, on the other hand, establishes a claim of the performing artists to appropriate remuneration, insofar as broadcasts of their performances are thereby made publicly perceptible (§ 78.2 no. 3 case 1 UrhG).
The judgment of the Court of Justice of the European Union of 15 March 2012 states that communication to the public within the meaning of Article 3(1) of Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society and Article 8(2), first sentence, of Directive 2006/115/EC on rental right and lending right and on certain rights related to copyright in the field of intellectual property requires, in any event, that the communication is made to an indeterminate number of potential addressees and to a fairly large number of persons. The Court of Justice of the European Union also ruled in this judgment that these conditions are generally not met when a dentist plays radio broadcasts as background music for his patients in his 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. Moreover, the facts of the case to be judged by the Federal Court of Justice coincided in all essential points with the facts of the case that had been before the Court of Justice of the European Union when it rendered its decision. The Federal Court of Justice therefore ruled that the reproduction of radio broadcasts in dental practices in general - and thus also in the case of the defendant - is not public and thus not subject to remuneration.
Judgment of the Federal Supreme Court of 18.06.2015 - Ref: I ZR 14/14
Lower courts:
AG Düsseldorf - Judgment of 17 October 2013 - 57 C 12732/12
Düsseldorf Regional Court - Judgment of 4 April 2013 - 23 S 144/13, juris
Source: Press release of the BGH
Goldberg Attorneys at Law 2015
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law
E-mail: m.ullrich@goldberg.de
