The determination of what constitutes a “communication to the public” under article 3(1) of the Information Society Directive (2001/29/EC) will continue to pose difficulties. The Court of Justice in its recently published Reha Training v. GEMA (C-117/15) decision of 31 May 2016 not only consolidated the criteria developed in its former case law, it also ensured their application in relation to neighbouring rights (article 8(2) of Directive 2006/115).

Reha Training, from June 2012 to June 2013, allowed accident victims receiving post-operative treatment in its rehabilitation centre to watch television programmes on television sets installed in two waiting rooms and a training room. According to collecting society GEMA, these acts were to be considered as “acts of communication to the public” requiring GEMA’s (prior) permission (including payment of royalties), which Reha had not obtained.

The Court, in a preliminary ruling requested by the Regional Court of Cologne (Germany), first held that the determination of whether there is an act of “communication to the public”, i.e. a (new) public is reached by a broadcaster, must be made in the same way and according to the same criteria irrespective of whether the right of communication to the public (copyright) of a right holder and/or the neighbouring rights of performers or phonogram producers are affected.

Moreover, applying the same criteria it had developed in its former case law, it held that “the body of patients of a rehabilitation centre”, such as in the main proceedings, is considered to be a “public” as it is made up of “persons in general”, “the circle of persons constituted by those patients is not ‘too small or insignificant’ and “those patients may enjoy works broadcast at the same time in several places in the establishment”.

Although the Court’s consistency can be applauded, it does not, however, provide much-needed legal certainty. Without objective criteria, national courts within the European territory can still to a large degree decide upon what constitutes a “public”, somewhat dividing European markets. In Germany, for instance, a body of 343 persons wasn’t considered to be a “public” (Ramses case). And although courts in other European countries might not go as far, there is however a (growing) need for more objective (quantitative) criteria.