The Regional Court of Cologne (Landgericht Köln) recently submitted several questions to the Court of Justice of the European Union (CJEU) dealing with the understanding of “communication to the public” of copyright protected works. At the core is the question whether rehab facilities are free to set up TVs in their own premises that allow their patients to watch TV programs and/or music videos or whether this constitutes a use of copyright triggering a claim for fair compensation of the rightholder (File Ref.: CJEU, C-117/15.
As usual for rehab and training centers, the facility here at issue placed a number of TVs within their premises showing copyright protected TV programs and videos. Thus, the patients could follow the current program during their training sessions.
Amongst the parties to the German lawsuit, it is at dispute whether GEMA, the competent German collecting society for musical performing and mechanical reproduction rights, may ask for fair compensation for making available the TV program and music videos to the patients. This could be the case if the showing of the protected works constituted a “communication to the public” within the meaning of copyright law. In this course, GEMA is representing the interests of rightholders such as composers, songwriters, performers, or record producers.
The term “communication to the public” is formally defined by European Union law. It can be found in Art. 3 (1) of the directive 2001/29 on the harmonization of certain aspects of copyright and related rights in the information society (“InfoSoc Directive“) as well as in Art. 8 (2) of the directive 2006/115 on rental right and lending right and on certain rights related to copyright in the field of intellectual property (“Rental Directive“). The right to communication to the public has been implemented in Sec. 15 (2) of the German Copyright Act (Urheberrechtsgesetz).
There have been several decisions rendered by the CJEU in which the court has shaped the term of “communication to the public“. The judges have developed a set of criteria to be applied when determining whether a communication to the public takes place. The here most relevant case is the decision SCF vs. Del Corso of 15 March 2012 (Case Ref.: C-135/10). It was about radio broadcasting in dental practices. In the end, the CJEU denied any kind of communication to the public and thus denied a right to fair compensation of the record producers.
Basically, the German court is keen to know whether the CJEU holds on to the criteria developed in SCF vs. Del Corso. The key question is whether the factual situation described above constitutes a “communication to the public” or not. In this context, the judges seek to ascertain which of the two directives, Directive 2001/29 or Directive 2006/115, actually govern the matter. Concerning the criteria developed by the CJEU, the German court has some very specific questions to pose:
- Is it necessary that the rehab center provides access to the protected works in full knowledge of the consequences of its action?
- In the context of the evaluation of the term “public“, must it be an undefined group of people excluding so-called private groups?
- Is there a certain de minimis threshold that has to be exceeded, so that groups of persons which are too small or insignificant do not satisfy the criterion?
- Is it relevant how many persons have access to the work at the same time or is the total number of persons who have access to it in succession we need to look at?
- Is the work communicated to a “new” public when the recipients do not belong to the group of people the author had in mind when first authorizing the use of his work by means of communication to the public? In this context, is it of significance whether the subsequent communication uses a specific technical means which differs from that of the original communication?
- Is it still relevant, whether the specific use serves a profit-making purpose and the public is not merely reached by chance?The intention of the German court is with respect to the specific wording of the questions obvious: the re-examination of the landmark decision in 2012 by the CJEU. It remains to be seen on how far the European Court of Justice will follow the request.
The term of “communication to the public” plays also a significant role in many cases where rather new technologies are tested such as Linking or Framing. Just recently the CJEU decided on the matter of live streaming of sport events on the internet (C More Entertainment vs. Sandberg, Case Ref.: C-279/13, Blog Post of 31. March 2015). The questions by the Regional Court of Cologne may insofar lead to greater clarity of the important term.