On 31 May 2016, the European Court of Justice (CJEU) handed down a long awaited decision regarding the interpretation of the term “communication to the public” (Case Ref. C-117/15). Over recent years, the interpretation of this term has been heavily under discussion. It was subject-matter of various lawsuits in many Member States as well as before the CJEU (e.g. judgment of 13 March 2014, Case Ref. C-466/12Svensson, or judgment of 15 March 2012, Case Ref. C‑135/10SCF ./. Del Corso). With the current ruling, the judges in Luxembourg have taken the opportunity of clarifying at least some of the aspects that were in dispute.

Background

The current questions regarding the interpretation of the term “communication to the public” were initially submitted by the Regional Court of Cologne in February 2015. The German court was and still is sitting over an action brought by the collecting society GEMA (German society for musical performing and mechanical reproduction). The defendant is a German rehabilitation center which placed several TVs in its waiting and training rooms. Patients who were waiting for their treatment or performing their rehabilitation training could watch the broadcasted program. GEMA considered placement of the TVs as an act of “communication to the public” with the consequence that a fair remuneration was requested from the rehab center. The rehab center, however, refused to pay any copyright levies to GEMA. Consequently, the matter went to court.

At first instance, the Local Court of Cologne ruled in favor of GEMA. However, on appeal the Regional court of Cologne expressed over affirming the first instance judgment or not (see blog post, 11 June 2015). The court did so on the back of jurisprudence which is not always consistent in this field of law. For instance, the CJEU once denied “communication to the public” in the case of SCF ./. Del Corso when radio broadcasting in dental practices was at stake (Judgment of 15h March 2012, Case Ref. C-135/10). Thus, the judges in Cologne did not feel sure about how to deal with TVs in a rehab center and referred a number of questions to the CJEU.

After the Advocate General published his opinion at the end of February 2016, it was now up to the CJEU to decide on the matter.

Judgment

Right at the beginning, the CJEU states that the term “communication to the public”, which is to be found in the InfoSoc directive 2001/29 as well as in the directive 2006/115 on rental right and lending right and on certain rights related to copyright in the field of intellectual property, has to be interpreted in application of the very same criteria regardless which directive is to be applied. According to the court, there is no indication whatsoever that could foster a twofold approach in this respect. Rather, a uniform interpretation is what has been intended by the European legislator.

Furthermore, the CJEU focuses mainly on two criteria for the concept of “communication to the public”: (1) the actual “act” of communication, and (2) the communication to the “public”. The latter criterion specifically caught the judges’ attention. In their view, a communication to a “public” requires (a) communication to an indeterminate number of potential recipients, which implies a fairly large number of persons, and (b) to a “new public”. As an underlying principle, also the “profit-making nature” of the communication has to be considered. All of these criteria are not autonomous but interdependent.

With regard to situations like the one at the German rehab center, the CJEU affirms a “communication to the public”. Parallels are seen to situations in hotels, restaurants or spa facilities. In particular, judges emphasize that there is an entertaining element in relation to the patients. This element is to be qualified as a competitive economic advantage used to win patients from other facilities.

The submitting court in Cologne also aimed for clarification whether – in the case of affirming the “communication to the public” in rehab facilities – the CJEU maintains its jurisdiction as set out in SCF ./. Del Corso, and if so where to draw the line? The CJEU, however, takes the position that this fourth question was unnecessary to reply to in the light of its answers to the first three questions.

Comment

As already announced by judge Jiří Malenovský, the CJEU was eager to clarify its position on quite a number of aspects relating to the term “communication to the public”. Consequently, the current ruling is indeed instructive. The criteria that are applied generally resonate. The notion of paying tribute to the fact whether or not a communication of a copyright-protected work adds economic value to the service of the communicator is compelling. However, it still remains a difficult task to actually determine the threshold in this respect. This is exactly why it would have been helpful to learn more about where the judges in Luxembourg would draw the line between a dentist’s practice and a waiting room in a rehabilitation center. In consideration of the Regional Court of Cologne having placed with the CJEU the fourth question, the latter has clearly missed out on generating even more legal transparency and security.