Implications of public disclosure of audio and/or audiovisual works in the absence of the specific license

I. Preamble

Through this article, we will address an issue of general interest for economic operators that broadcast audiovisual and/or audio materials through sound or image playback systems in their premises or work points.

Specifically, we will detail to what extent the public disclosure of some music, videos, movies, etc. could attract the obligation of economic operators to pay certain specific remunerations, but also the competent bodies in collecting these remunerations.

For a clearer understanding of all the concepts presented, we will detail: (i) what copyright and copyright-related rights actually represent; (ii) what is the concept of public disclosure of a work having attached copyright or copyright-related rights; (iii) the manner in which copyright and copyright-related rights are to be exercised and the remuneration due by economic operators; (iv) the specific sanctions applicable.  

II. Copyright and copyright-related rights

According to art. 7 of Law 8/1996, the object of copyright is represented by "original works of intellectual creation in the literary, artistic or scientific field, regardless the method of creation, method or form of expression and regardless their value and destination (... ) ”.

According to art. 12 of Law 8/1996, "The author of a work has the exclusive patrimonial right to decide if, in what way and when his work will be used, including to consent to the use of the work by others".

At the same time, according to art. 13 of Law 8/1996, the copyright holder has the patrimonial right to authorize or prohibit operations such as reproduction of the work; distribution of the work; the import for marketing purposes on the internal market of made copies; renting the work; public disclosure, direct or indirect, of the work, by any means; broadcasting the work; cable retransmission of the work; making derivative works and so on.

Each of the above operations benefits from special protection and may be allowed/prohibited by the copyright holder separately and exclusively. For example, the composer of a piece of music may allow its public disclosure, but may expressly prohibit its reproduction and distribution.

Furthermore, the copyright-related rights are not expressly regulated by the Romanian legislator but can be understood by reference within Law no. 8/1996.

Thus, according to art. 94 of Law no. 8/1996: "are recognized and protected as holders of copyright-related rights: performers, for their own performances, producers of sound recordings and producers of audiovisual recordings, for their own recordings and broadcasting and television bodies, for their own programs and program services”.

In any case, it is important to note that copyright and copyright-related rights holders have the right to authorize or prohibit the use of their works by public disclosure.

III. The concept of „public disclosure”

Once we have established that the holders of copyright and copyright-related rights have the prerogative to authorize or prohibit the public disclosure of their works, we must determine the meaning and the extent of the concept of public disclosure.

The importance of this approach is simple: if the work is disclosed publicly, the persons listed above will have the right to receive specific remuneration.

Thus, according to art. 15 of Law 8/1996, public disclosure represents “any disclosure of a work, made directly or by any technical means, in a place open to the public or in any place where there are a number of persons exceeding the normal circle of family members and their acquaintances (...)”.

The term "public disclosure" has also been defined by the Court of Justice of the European Union (hereinafter "CJEU").

Thus, CJEU stated that a "public disclosure" needs 4 (four) constituent elements to be satisfied[1]:

• Existence of a disclosure act

According to the Court, an act of disclosure is made when the user intervenes with full knowledge of the consequences of his conduct, in order to give his clients access to the work with copyright or copyright-related rights attached.

• The disclosure must be public

For a disclosure to be public, it must be addressed to an indeterminate number of potential recipients. Specifically, in the case where the disclosure is not only addressed to a private group of people (i.e. a family/group of friends), it has a public character.

• The "new" character of the public

This criterion involves the following analysis - is the viewing/listening of the work performed only by the persons who have an electronic device for rendering that content, as well as, possibly, by the small group of persons associated with that person?

Assuming that work is "consumed" only by the people mentioned above, we do not have a "new" audience. However, if the work is made available to a large number of people, which exceeds the user's family or friends, this condition is considered to be fulfilled.

• The "gainful" nature of disclosure

To meet this last condition, the public disclosure of the work must create a direct or indirect economic advantage to the user. In other words, it is necessary that the broadcast work leads to an increase in the number of customers, an increase in sales, the creation of an environment that favors an increase in the number of customers or sales, and so on.

IV.  Exercise of copyright and copyright-related rights and remuneration due by economic operators

Law no. 8/1996 gives the holders of copyright and copyright-related rights the possibility to exercise their rights (i) individually or (ii) on the basis of a mandate, through collective management bodies.

Collective management bodies represent "legal persons constituted by free association, whose object of activity is constituted mainly of collection and distribution of the rights whose management is entrusted to them by the holders".

Among the collective management bodies, we mention the following:

• The Union of Phonogram Producers in Romania or U.P.F.R. (manages copyright-related rights - i.e. the rights of producers of phonograms / sound recordings, as well as the rights of producers of cinematographic and other audiovisual works);
• The Romanian Center for the Administration of the Rights of Performers or C.R.E.D.I.D.A.M. (manages copyright-related rights - i.e. the rights of performers of musical pieces);
• UCMR - ADA (manages copyright in the music field);
• Copyright in Cinematography and Audiovisual - Society of Romanian Audiovisual Authors or DACIN SARA (manages copyrights in the field of cinematographic works and other audiovisual works);

Law no. 8/1996 expressly provides the cases in which copyright and related rights:

• must be exercised through collective management bodies - art. 145 of Law 8/1996[2];
• can be exercised through collective management bodies - art. 146 of Law 8/1996[3];

What is the purpose of collective management of copyright and copyright-related rights? According to art. 150 paragraph (3) of the Law, the collective management bodies have the main obligation/prerogative to grant non-exclusive licenses to the users, at their request, prior to the use of the protected repertoire, in exchange for remuneration.

Basically, by obtaining a non-exclusive license, the economic operator acquires the right to proceed to the public disclosure of works through audio speakers, monitors, etc., inside their premises or work points.

The remuneration due by the economic operators is variable, being conditioned by various specific criteria (such as the area and destination of the used building, the rating of the accommodation unit, etc.). For each type of copyright and copyright-related rights, the remuneration is established by decisions issued by the Romanian Copyright Office (by way of example, ORDA Decision No. 10/2016, ORDA Decision No. 266/2011, ORDA Decision No. 6 / 2016), or through protocols concluded between collective management bodies and entities with the power to represent certain categories of economic operators.

V. Consequences of the public disclosure of works without obtaining the license in advance

According to art. 188 para. (1) of Law no. 8/1996, "The holders of the rights recognized and protected by this law may request the courts or other competent bodies, as the case may be, the recognition of their rights and the finding of their violation and may claim compensation for damages."

In addition, according to art. 188 para. (2) of Law no. 8/1996, “When establishing the compensations, the court takes into account:

a) criteria such as negative economic consequences, in particular unrealized gain, benefits unjustly realized by the perpetrator and, where appropriate, other elements other than economic factors, such as non-pecuniary damage caused to the right holder;

b) or granting compensation representing the triple of the amounts that would have been legally due for the type of use that was the object of the illicit deed, in case the criteria provided in let. a) ”.

Therefore, in the case of public disclosure of works without prior obtaining the license and paying the specific remuneration, there is a risk that the court will oblige the economic operator to pay three times the remuneration due.

This sanction has been regularly applied by the courts in cases aimed at awarding compensation for the public disclosure of works in the absence of a non-exclusive license. By way of example, we refer here to Decision no. 851A / 29.05.2019 pronounced by the Bucharest Court of Appeal, Sentence no. 900/2020 of the Bucharest Tribunal, etc.

VI. Conclusions

From the analysis undertaken, the following conclusions can be drawn:

• the broadcasting by the economic operator of some audio or audiovisual works by means of sound or image reproduction systems may constitute an act of public disclosure, which falls under the provisions of Law no. 8/1996;
• in order to constitute an act of public disclosure, the 4 (four) cumulative conditions presented in chapter III must be fulfilled;
• in case the conditions regarding the public disclosure of the works are fulfilled, the economic operators will have the obligation to obtain non-exclusive licenses and to pay specific remunerations;
• in case the economic operator proceeds to the public disclosure of the works without obtaining the necessary non-exclusive licenses, he could be obliged by the court to pay the triple of the legally due remuneration;

MAXIM / Asociații

Av. Filip Alexandru

[1] Case C - 117/15 - Reha Training Gesellschaft fur Sport und Unfallrehabilitation mvH v. Gesellschaft für musikalische Aufführungs- und mechanische Vervielfältigungsrechte eV (GEMA)

[2] Art. 145 - “Collective management is mandatory for the exercise of the following rights: a) the right to compensatory remuneration for the private copy; b) the right to fair remuneration for the public loan provided in art. 18 para. (2); c) the right of the suite; d) the right to broadcast musical works; f) the right to fair remuneration recognized to performers and producers of phonograms for public communication and broadcasting of phonograms published for commercial purposes or their reproductions; g) the right of cable retransmission; h) the right to fair compensation for orphan works; ".

[3] Art. 146 - “The following rights may be managed collectively: a) the right to reproduce musical works on phonograms or videograms; b) the right of public communication of works, except for musical works, and of artistic performances in the audiovisual field; c) the loan right, except for the case provided in art. 145 para. (1) lit. b); d) the right to broadcast works and artistic performances in the audiovisual field; d1) the online rights over the musical works, provided in art. 173; e) the right to fair remuneration resulting from the assignment of the rental right provided in art. 119 para. (1).".