Hotels will pay for TV and radio… but a dentist will not!

While detecting it in case of private citizens is not easy, since the authorities cannot simply walk into a house and check whether or not a citizen possesses a radio or a TV set, in case of service providers the officials can demand a license and punish them for illegaly spreading so called phonograms, i. e. copyrighted TV and radio material.

The situation in Lithuania is different, since there is no payment required for owning a TV set from private citizens; there is, however, an obligatory payment from economic entities which, unlike in Poland, has been introduced by a private association of artists.

For many, copyright still means a ban on copying and distributing films, music, and software on data carriers such as Blu-ray, CD, and DVD. It should be realized, however, that displaying a work publicly is also a violation of copyright. According to the European Law every person who publicly displays phonograms is obliged to pay the owner of the rights a one-time fee. Interestingly enough, Court of Justice of the European Union has ruled otherwise.

The Court stated that ‘the intentions of the intent of the person distributing phonograms, as well as those of the viewing public, should be judged on an individual basis. Many interconnected factors should be taken into account.’ The Court pointed out to fairly vague conditions under which the copyrighted materials can be publicized. Firstly, the person making the material publicly available has to be profit oriented and their enterprise has to be directly connected with publicizing the materials. Secondly, it has to be done publicly which according to the Court means presenting the materials to a large but unspecified number of people gathered for the explicit purpose of viewing the material.

It cannot be said that people in liberal professions, who use music and films to make the customers’ stay in their offices and waiting rooms more pleasant, or – as is the case with psychoanalysts – to ensure the confidentiality of conversations, intend to make a profit from publicizing materials.

Furthermore, the judges have stated that the people appearing in offices or waiting rooms are accidental recipients, not intentionally partaking in the broadcast, and that they do not receive the same phonogram but various unrelated compositions. The statement made by the Court gives people in liberal professions a certainty that their actions do not violate the law and that they will not face civil charges and be subject to considerable legal expenses. It is worth noticing another important ruling of the Court on a similar subject. In the case C-162/10 the Court decided that unlike in the case of a dentist, hotels have to pay fees for the music they play for their customers. The basis for this ruling was the fact that playing the music is important for the hotel as it raises the standard, which correlates to increased room prices and bigger number of guests. What is more, it can be assumed that in such places the phonograms are played for a large, unidentified, and receptive audience. This analysis doubtlessly confirms that if the owner receives profit from the phonogram he should also pay the fee, which is what the Court ordered.

The rulings in question provide an important and indispensable method of determining who and in what circumstances is obliged to cover the costs of copyrighted phonograms. Both rulings are thus a supplement to and an interpretation of copyright law.

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