On 20 April 2023, the European Court of Justice ("ECJ") issued its judgment in joined Cases C‑775/21 and C‑826/21 (Blue Air Aviation SA v. UCMR – ADA and UPFR v. SNTFC) originating from the preliminary references on whether the broadcasting of a musical work as background music on board trains or aircrafts constitutes a form of communication to the public. The ECJ ruled that the broadcasting of a musical work as background music in a means of passenger transport constitutes a communication to the public within the meaning of EU law. By contrast, the mere provision of physical facilities for enabling or making a communication does not in itself constitute a communication. Consequently, member states are prevented from establishing a presumption that there is a communication to the public because of the presence of sound systems in means of transport. Indeed, the ECJ observed that such legislation may have the consequence of requiring payment of remuneration for the mere presence of such systems in means of transport, even in the absence of any act of communication to the public.
Originally published by May, 2023
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