AG Szpunar advises CJEU to rule that car leasing companies making available vehicles with built-in radio systems are not ‘users’ that perform a communication to the public

Abstract

Opinion of Advocate General Szpunar in C-753/18 STIM and SAMI v Fleetmanager Sweden AB and Nordisk Biluthyrning AB, EU:C:2020:4, 15 January 2020 In his Opinion in STIM and SAMI, Advocate General (AG) Szpunar considered that car leasing companies are not ‘users’ that communicate works to the public within the meaning of Article 3(1) of Directive 2001/29/E (InfoSoc Directive) and Article 8(2) of Directive 2006/115/EC (Rental Rights Directive). The role of car rental companies merely consists of providing cars equipped with radio receivers that have been pre-installed by the respective car manufacturers. In 2018, the Swedish collective management organization STIM and the Swedish Artists and Musicians’ Interest Organization, SAMI, brought separate proceedings against two companies that operate in the automobile leasing/renting industry. Both cases ensued from missed payment (since 2014) of yearly licensing fees to STIM and SAMI. Following an appeal to the Swedish Supreme Court, this stated that, according to the case law of the Court of Justice of the European Union (CJEU), it is apparent that a communication to the public may take place—in the manner envisaged by Article 3(1) of the InfoSoc Directive—when transmissions are made by means of technical equipment to a nearby public (e.g. in a hotel, café, rehabilitation centre or a spa). Furthermore, the CJEU has held that hotel operators carry out a communication to the public under Article 8(2) of the Rental Rights Directive when hotel rooms are equipped with phonograms available in digital or physical form and which can be played or intercepted (Case C-162/10 Phonographic Performance Ireland, EU:C:2012:141). Nonetheless, the CJEU has also come to the opposite conclusion regarding transmission of phonograms in a dentist’s waiting room (C-135/10 Società Consortile Fonografici, EU:C:2012:140). The Supreme Court was unsure of how to treat the providers of rental cars. It, therefore, decided to stay the proceedings and ask the CJEU to clarify the scope of communication to the public. In particular, the Swedish Supreme Court asked the Court of Justice to answer the following questions: