Court of Appeal of Brescia: Payment of fees to SCF is mandatory

Judgement No. 75/2019 (issued on February 25, 2019) held, in particular, that a profit-making purpose cannot be found only in cases where the diffusion of music represents the service provided to the relative users within the framework of a specific contractual relationship, but "it must instead be recognised in any situation in which the diffusion of music has not performed a mere function of amusement, but has constituted the consequence of an investment of assets aimed at achieving economic objectives, such as that of increasing sales, or even only of creating an environment suited to the current market needs in the sector of competence".

As a consequence, objectively, the criminal offence must be considered to be integrated, while subjectively, there is no room for the exculpatory defence raised by the appellant regarding the erroneous assumption of the obligation to pay only the SIAE fee, since "such assumption must be presumed to be consequent upon the failure to carry out the necessary investigations in this regard (easily obtainable even with a simple internet search using standard search engines)".

Finally, the Court reiterated the impossibility of applying the rule of legal accumulation, since the provisions of Article 174-bis of Law 633/1941 (a special rule compared to the general rule of Article 8 of Law 689/1981) expressly establishes that the administrative sanction is applied in the measure established "for each violation" and "for each copy" abusively duplicated or reproduced.

The Court of Appeal of Brescia therefore confirmed the conviction of the owner of the commercial establishment to pay the administrative sanction, equal to Euro 69,319.00, due to the diffusion of music within the sales outlets in the absence of the necessary SCF licence.