Once again, the opinion of the Court of Justice of the European Union (“CJEU”) has been requested on a copyright-related topic which is under debate lately: the concept of “communication of works to the public”, as set forth in Article 3(1) of Directive 2001/29, of 22 May 2001, on the harmonization of certain aspects of copyright and related rights in the information society (the “InfoSoc Directive”). This concept has been at the heart of a few of our posts recently making it a hot topic to follow.

Questions referred

In the case at hand, involving Sociedade Portuguesa de Autores CRL and Ministério Público, the Tribunal de Relação de Coimbra (Portugal) has referred the following couple of questions to the CJEU for a preliminary ruling (Ref.: Case C-151/15):

  • “Is the concept of the communication of works to the public within the meaning of Article 3(1) of Directive 2001/29 1 to be interpreted as encompassing the transmission of broadcast works in commercial premises such as bars, cafes, restaurants or other such establishments with similar characteristics, via television receiving apparatus, where the transmission of such works is amplified by speakers or amplifiers, thus constituting, in that context, a new use of copyright-protected works?
  •   Does the use of speakers and/or amplifiers, that is, technical means other than television broadcast reception equipment, to amplify broadcast sound have any effect on the answer to the first question?”

The answer to these questions is relevant because, should the Court deem that transmission to be “communication of works to the public” protected by Article 3(1) of the Infosoc Directive, the rightholder would be entitled to fair compensation under the limitations set out in Article 5 of the InfoSoc Directive.

Comment

According to recent rulings from the CJEU (particularly, BestWater case Ref.: C-348/13 and Svensson case Ref.:  C-466/12), there are two main and successive requirements which should be met by a communication in order to fall within the scope of “communication of works to the public” as provided for in Article 3(1) of the InfoSoc Directive: (a) the communication should be carried out through different and specific technical means or, failing this, (b) the communication should be directed at a new public (i.e. a public that was not originally considered by the copyright holders when they authorized the initial communication to the public).

In the light of the above, the first question to address here is whether or not speakers and amplifiers could be understood as technical means different from television receiving apparatus (if the answer is yes, a “communication of works to the public” would exist). Yet, if this question is answered in the negative, the CJEU should still assess if the transmission of broadcast works in commercial premises (e.g. bar, cafes, restaurants, etc.) is directed at a new public. If the answer is yes, a “communication of works to the public” would exist, even though the same technical means were used.

With regard to this second question, the novelty of the public would be clear, for instance, in cases where transmission of broadcast works is made against payment. Particularly, where the copyright holder has clearly decided to restrict the targeted audience to the extent that the transmission of the works in this way would contravene the copyright holder’s decision.

Despite the fact that the InfoSoc Directive intended to be neutral from a technological point of view, practice shows that technology increasingly plays a role in the field of copyright proceedings. Whereas in BestWater and Svensson the CJEU had to deal with linking techniques on the Internet to assess if a “communication of works to the public” existed, it is now time for the Court to assess, among other issues, the effects that the use of speakers and amplifiers may have on this challenging concept.