The Grand Chamber of the CJEU has recently given another important ruling on the meaning of "communication to the public" in copyright infringement cases. In doing so it has provided a useful clarification of its previous case law on this issue and confirmed that the term should be given the same meaning in the InfoSoc and Rental Directives.

Background

GEMA, the German music collecting society claimed royalty payments from Reha Training who never requested GEMA's permission to broadcast television programmes in their rehabilitation centre. The Landgericht Köln (Regional Court, Cologne) referred the following questions to the Court of Justice of the European Union (CJEU):

  1. Does the making available of TV broadcasts by means of TV sets on the premises of a rehabilitation centre fall within the scope of Article 3(1) of the InfoSoc Directive (2001/29/EC) and/ or Article 8(2) of the Rental and Lending Rights Directive (2006/115/EC) (the "Directives")? and
  2. Should the concept of ‘communication to the public’ for the purposes of the Directives be given a uniform interpretation?

Advocate General's Opinion

We have previously reported on Advocate General Bot's advice to the CJEU in this case.

Grand Chamber decision

Uniform Interpretation

The CJEU noted that, given the requirements of unity and coherence of the EU legal order, the concept of "communication to the public" should be given the same meaning in the two Directives, unless the EU legislature has expressed a different intention (see FA Premier League). The Court agreed with the Advocate General that, although the rights protected under the Directives are of a different nature, those rights have the same trigger – the communication to the public of protected works.  There is no evidence that the EU legislature wishes to confer a different meaning in the two Directives so the concept must be assessed in accordance with the same criteria to avoid contradictory and incompatible interpretations.

Previous CJEU case law on communication to the public

Before deciding whether the broadcasts in the immediate case constituted a communication to the public, the CJEU helpfully recapped its previous case law on this issue. The CJEU has already held that, in order to determine whether there has been a communication to the public, account has to be taken of several complementary criteria, which are not autonomous and are interdependent. These criteria come into consideration differently in different scenarios. The concept must also be interpreted broadly (see TV Catchup).

According to SBS Belgium (C-325/14), "communication to the public" involves two cumulative criteria: (1) an act of communication; and (2) communication of that work to the public.

1. Act of Communication

This refers to any transmission of the protected works, irrespective of the 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 (SBS Belgium).

2. Communication to a "public"

"Public" refers to an indeterminate number of potential recipients and implies a fairly large number of persons (SGAE C-306/05). Indeterminate means to "persons in general" and is not restricted to specific individuals belonging to a private group. A "fairly large number of persons" encompasses a "certain de minimis threshold" and excludes groups that are too small or insignificant (SCF C-135/10).

New public   

The work broadcast must be transmitted to a "new public" i.e. one which was not taken into account by the authors when they authorised their use by the communication to the original public (SGAE).  In this respect the Court has emphasised the indispensable role of the user. That user must, in full knowledge of the consequences of his actions, give access to the TV broadcast containing the protected work to an additional public and, in the absence of that intervention, those "new viewers" are unable to the enjoy the broadcast works. The CJEU has previously held that operators of a café, a hotel or a spa make a communication to the public if they intentionally distribute a signal by TV or radio sets that have been installed in their establishment (SGAEFA Premier League). The public is not caught by chance but is targeted by their operators.

The profit making nature of a broadcast is not determinative but is relevant for the purpose of determining any remuneration due in respect of the transmission. (FA Premier League). The broadcast of protected works has a profit making nature where the user is likely to obtain an economic benefit related to the attractiveness and therefore the number of people going to the establishment. The CJEU has previously held that this is not the case for a dentist because the patients do not give any importance to such a broadcast (SCF).

The Grand Chamber concluded that the current proceedings were "fully comparable" with a café, hotel or spa and Reha Training had communicated protected works to the public:

  • There had been an act of communicationbecause the operator of the rehab centre had intentionally broadcast protected works to its patients by means of TV sets installed in several places the establishment;
  • The patients of the rehab centre were a publicbecause they are "persons in general". The circle of persons is not too small or insignificant because they can enjoy the works broadcast at the same time in several places in the establishment; and
  • There was a new public because the patients could not enjoy works broadcast without the targeted intervention of the operator of the centre.  

Comments

The CJEU is clearly aware of the need to clarify the case law on the meaning of communication to the public and therefore decided the case in Grand Chamber (with 13 judges rather than the usual 3 or 5). The judgment provides a useful summary of previous case law on the issue and confirmation that the concept of communication to the public should be interpreted broadly.

It is also sensible and reassuring that the CJEU has agreed with the Advocate General that the scope of the InfoSoc and Rental Directives should be the same, given their overall purpose and use of the same concept.

The ruling also seems to mirror the emphasis placed by the Advocate General in the GS Media hyperlinking case on intervention in the "new public" test – i.e. emphasis is placed on the fact that, were it not for the intervention of the user (here the Reha rehabilitation centre operators), the copyright work wouldn't reach a new public. This "targeted intervention" approach seems to be a new and important factor for determining whether there is a new public.

The judgment also raise some interesting questions:

  • The Court appears to support the requirement that the communication is to a "new public" without specifically mentioning any exceptions. This doesn't appear to correspond with what it said in TV Catchup, that there is no need for a new public if the transmissions use different technical means. It also appears contrary to the Advocate General in GS Media (relying onSvensson and FA Premier League) who thought that the "new public"requirement is only applicable where the original communication was authorised by the copyright owner. Moreover, it is difficult to see how the "new public" definition ("a public which was not taken into account by the authors when they authorised their use by the communication to the original public ") can be applied in cases of linking to unauthorised content when there is no initial authorisation by the rightsholder.
  • The CJEU has agreed with Advocate General Bot in this case that you need some sort oftransmission of the work for there to be a communication to the public. This appears inconsistent with its previous decision in Svenssonon hyperlinking where the Court held that it is sufficient that the work is made available, even if the public doesn't avail themselves of the opportunity to access it.

It will therefore be very interesting to see how the CJEU interprets this latest guidance on communication to the public in the context of hyperlinking to unauthorised content in its pending judgment in GS Media.