Following a request by the French Government, the Grand Chamber of the European Court of Justice (the ‘Court’), which constitutes all 13 judges and is reserved for complex or important cases, has sought to clarify ‘communication to the public’ in Reha Training.
The Court attempted to reconcile a number of rulings and set out a criteria on what amounts to a ‘communication to the public’. Any clarity on the subject is welcome given the diverse approach taken by the Court previously.
Interestingly the Court sought to distance itself from the judgement in SCF in which the Court held that patients of a dental practice, who were viewing protected works via television sets in waiting rooms, were not ‘persons in general’ and that the communication was not of a ‘profit making nature’. Advocate General Bot, who offered his opinion in the current case, stated that the scope of the judgement in SCF should not be extended, but limited to its facts. To apply the reasoning would, in his view, be too restrictive on copyright and related rights and would be contrary to the high level of protection desired by the Union legislature.
The matter involved a rehabilitation centre operated by Reha Training where accident victims received post-operative treatment. The centre included two waiting rooms and a training room in which Reha Training broadcasted content on television sets. Reha Training failed to gain permission from GEMA, which is responsible for the collective management of music copyright in Germany. GEMA consequently alleged breach of copyright and claimed damages relating to royalty payments due. The Cologne Regional Court (the ‘Referring Court’) referred the matter for preliminary ruling asking whether the broadcasts amounted to ‘communication to the public’ under Article 3(1) of InfoSoc Directive (‘Copyright Directive’) and Article 8(2) of the Rental and Lending Rights Directive (‘Rental Directive’) and whether the concept should be given uniform interpretation under the two directives.
The Court held that the EU legal order requires unity and coherence and, as such, the concept of ‘communication to the public’ must be identically construed for the purposes of both the Copyright Directive and the Rental Directive. This, the Court stated, should be the case despite the differing statutory contexts between the directives. AG Bot set out four assessment criteria for judging whether a transmission of protected works would amount to ‘communication to the public’. The Court built on this with additional criteria, each of which are non-autonomous and are interdependent in nature. Underpinning this approach is the concept that ‘communication to the public’ must be interpreted broadly, as expressly stated in recital 23 to the Copyright Directive.
Is there an ‘act of communication’?
An ‘act of communication’ refers to any transmission of the protected works, irrespective of technical means or process used. Every transmission, or retransmission, of a work which uses a specific technical means must, as a rule, be individually authorised by the author of the work in question.
It had previously been established that operators of a public house, a hotel or a spa establishment perform an act of communication when they deliberately transmit protected works to their clientele, by distributing a signal through television or radio sets installed in their establishments. The Court held those situations were fully comparable with the issue of the proceedings and held an ‘act of communication’ had taken place.
Is the communication to a ‘public’?
The second criteria set out by the Court is that the communication must be to a ‘public’. A ‘public’ has two characteristics; (a) it refers to an indeterminate number of potential recipients; and (b) it implies a fairly large number of people. AG Bot stated that ‘public’ should be interpreted in contrast with ‘specific individuals belonging to a ‘private group’ of persons’. In determining the size of the audience, it is relevant to look at the number of people who have access to the protected works at the same time and in succession.
The Referring Court had expressed doubts as to whether the patients of the rehabilitation centre constituted a ‘public’ on the basis of the decision taken in SCF. The case involved a dental surgery which was transmitting protected works to patients in its waiting rooms through television sets. The Court ruled that patients of a dentist, who generally form a largely consistent group of persons, constitute a determinate circle of potential recipients and the number of them with access to the same work at the same time was not large.
This approach was rejected by both AG Bot and the Court who distinguished the case, holding that patients of the rehabilitation centre operated by Reha Training, who form a constantly changing group with each visit, do constitute a group of persons which is potentially large. This ruling expressly limits the reasoning of the Court in SCF.
Does that ‘public’ have a new character?
The Court moved on to explain that in order for the communication to be to a ‘public’, it must be transmitted to a ‘new public’. This is to say a ‘group which was not taken into account by the authors of the protected works when they authorised their use by the communication to the original public’ .
Taking a different approach to AG Bot, the Court stated that in addition, the indispensable role of the user (i.e. operators of a coffee shop, hotel or spa) was relevant when considering whether there was a ‘new public’. The Court stated that, in order for there to be a communication to a ‘new public’ the user must: (a) in full knowledge of the consequence of his actions, give access to the television broadcast containing the protected work to an additional public; and (b) in the absence of that intervention those ‘new’ viewers are unable to enjoy the broadcast works, although physically within the broadcast’s catchment area.
The Court held that patients of such a rehabilitation centre cannot, in principle, enjoy works broadcast without the targeted intervention of the operator and that as the dispute is around the payment of royalties, the patients were clearly not taken into account when the original authorisation was given.
Does the communication have a ‘profit-making’ nature?
Finally, the Court stated there must be a ‘profit-making’ nature to the communication, although this is not an essential condition. The Court had previously held in SCF that the television programs were accessed by the patients of the dental surgery by chance and the business drew no financial benefit from the programming.
Again AG Bot and the Court departed from SCF, stating that ‘the broadcasting of television programs on television sets, in so far as it is intended to create a diversion for the patients of a rehabilitation centre…during their treatment or in the waiting time, constitutes the supply of additional services which, while not having any medical benefit, does have an impact on the establishment’s standing and attractiveness, thereby giving it a competitive advantage’.
The judgement marks an important departure from SCF and strengthens the protection given to owners of protected works. It also offers clarity on the approach which should be taken by the Court when assessing infringement of this nature.
However, the approach taken may have an impact on the pending matter of GS Media which concerns whether hyperlinks can amount to a ‘communication to the public’.
Although the Court broadly affirmed the conclusion of AG Bot, its approach differed in that it considered the ‘indispensable role of the user’ as part of the ‘new public’ test. AG Bot took the same approach as AG Wathelet in GS Media (and the Court in Football Association Premier League), considering the ‘indispensable role of the user’ in relation to the fundamental question of whether there has been a communication at all.
Although this may seem an academic point, AG Wathelet based his opinion in GS Media on the fact that ‘hyperlinks which lead…to protected works do not ‘make available’ those works to a public where the works are freely accessible on another website, but merely facilitate the finding of those works’. ‘To establish an act of communication, the intervention of the ‘hyperlinker’ must be vital or indispensable in order to benefit from or enjoy works’. If the Court’s approach in Reha Training is adopted – i.e. the only requirement for an act of communication is a transmission or retransmission of a protected work – a hyperlink is likely to be held to be a communication.
AG Wathelet further explained that ‘hyperlinks by users is both systematic and necessary for the current internet architecture’ and ‘if users were at risk [of copyright infringement] whenever they post a hyperlink to works freely accessible on another website, they would be more reticent to post them, which would be to the detriment of the proper function and the very architecture of the internet, and to the development of the information society’. We will await the Court’s ruling as to the proper approach to be taken when considering hyperlinks and copyright infringement.