The Danish court has recently decided that a party may be too large to be considered private, at least when it comes to the understanding of the wording “Public performance” in Danish copyright law. The court therefore ruled that the staff party held by Novo Nordisk should be considered as public in connection to the Danish Copyright Act, and therefore Novo should pay Koda for the use of musical work and text.
Danish copyright law implements a range of EU directives, including directive 93/98/EEC concerning harmonizing the term of protection of copyright and certain related rights, and directive 92/100/EEC on rental rights and lending rights and on certain rights related to copyright in the field of intellectual property.
Every year, the Danish global healthcare company Novo Nordisk throws a big private party for all of its employees. This was also the case in the years 2012 and 2013, where respectively 7,500 and 8,200 Novo Nordisk employees participated in the party. No non-employees were admitted to the parties. At the parties, DJs played the latest radio hits and a range of Danish musicians performed live.
Koda, the association in Denmark that administers the public performing rights of Danish artists, music creators and the publishers, and through reciprocal contracts with rights societies in more than 115 countries, also the performing rights of foreign artists, filed in 2013 a lawsuit against Novo, claiming that the staff parties in 2012 and 2013 should be considered public in terms of the Danish Copyright Act, and that Novo therefore should be bound to pay Koda for the right to play and use music at the parties. Novo claimed acquittal on the grounds that this was a closed party where only employees had access, and therefore refused to pay Koda.
According to the Danish Copyright Act, the person creating a literary artistic work shall have copyright therein. Copyright implies the exclusive right to control the work by reproducing it and by making it available to the public. According to article 2(3) of the Danish Copyright Act, work is made available to the public if the work is performed in public. In the current case, the Court therefore had to determine the demarcation between public performances and performances for groups of private nature.
In earlier case law, the basic criterion for this demarcation is whether there are personal ties between the person responsible for the performance and the audience. If so, the performance is private and is not protected. There have been a number of judgments on the use of music in closed societies or associations, and according to the case law the performance can only be private if the association has certain substantive or territorial criteria for membership that otherwise cannot be obtained immediately prior to the event, and if the association has a non-sociable purposes. Although these criteria are met, it will be considered public performance if the number of union members or participants is very high.
In the Novo against Koda case, the court came to the same conclusion and stated that the performances at the Novo staff parties in 2012 and 2013 should be considered public, especially due to the high number of participants. The fact that only staff could participate, and that the participation did not involve payment, could not lead to another result.
Staff parties held by the companies will probably only be bigger and more widespread in Denmark in the future, as it is a good way to gather colleagues across tasks and seniority and show gratitude to employees. In the future, however, the companies have to bear in mind that a private disco could be considered public, and therefore require payment to Koda or other related organizations. Preliminary negotiations have been made in an attempt to reach agreement concerning specific tariffs for music performances at staff parties between Koda and the Danish employers’ association – so far without result.
Therefore, we can only conclude that in connection to private staff parties if you are inviting approx. 7,500 employees, this could no longer be considered a private party. In connection to associations, the line has been drawn at approx. 800 people; it must be assumed that 800 people could also be the maximum number of people in connection to private staff parties – this is however not specified by the courts.