The European Court of Justice (ECJ) has held that the concept of communication to the public in the Copyright Directive (2001/29/EC) and the Rental Directive (92/100/EEC, now 2006/115/EC) should be defined in accordance with the same criteria for both provisions.
EU member states must provide authors with the exclusive right to authorise or prohibit any communication to the public of their works by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them (Article 3(1), Copyright Directive) (Article 3(1)).
Member states must provide a right in order to ensure that a single equitable remuneration is paid by the user, if a phonogram published for commercial purposes, or a reproduction of that phonogram, is used for broadcasting by wireless means or for any communication to the public, and to ensure that this remuneration is shared between the relevant performers and phonogram producers (Article 8(2), Rental Directive) (Article 8(2)).
The ECJ has held that the operators of a café-restaurant, hotel or spa establishment make a communication to the public if they intentionally broadcast protected works to their clientele, by intentionally distributing a signal by means of television or radio sets that they have installed in their establishment (Sociedad General de Autores y Editores de España v Rafael Hoteles SA C-306/05; Football Association Premier League Ltd and others, C-403/08 and C-429/08; Ochranný svaz autorský pro práva k dílům hudebním, o.s. v Léčebné lázně Mariánské Lázně a. s., C-351/12). However, in Società Consortile Fonografici (SCF) v Marco Del Corso, the ECJ held that patients in a dentist’s surgery did not amount to “a public” (C-135/10).
R operated an accident rehabilitation centre and had installed, in its waiting rooms and training room, televisions enabling programmes to be viewed and heard by its patients. A collecting society, G, sued R for unpaid royalties for the broadcast of those programmes, arguing that it amounted to a communication to the public of works.
A German regional court referred various questions to the ECJ.
The ECJ held that R’s broadcast of television programmes was a communication to the public within Article 3(1) and Article 8(2).
The issue was whether a situation constituted a communication to the public within the meaning of both Article 3(1) and Article 8(2) in accordance with the same criteria. Despite the different nature of the rights protected under the Copyright and Rental Directives, they had the same trigger, namely the communication to the public of protected works. As a result, where the broadcast of television programmes allegedly affected not only copyright, but also the rights of performers or phonogram producers, both Article 3(1) and Article 8(2) had to be applied so as to give the concept of communication to the public in both provisions the same meaning. The concept had to be assessed in accordance with the same criteria in to avoid contradictory and incompatible interpretations.
Here, café-restaurants, hotels or spa establishments were comparable to the operator of a rehabilitation centre intentionally broadcasting protected works to its patients by means of television sets installed in several places in that establishment. So the operator had carried out an act of communication.
The body of patients within a rehabilitation centre constituted a public because they were persons in general, and the circle of persons was not too small or insignificant, particularly as those patients might enjoy works broadcast at the same time in several places in the establishment.
The patients constituted a new public as they could not enjoy works broadcast without the targeted intervention of the operator of the centre. As the dispute concerned royalty payments for the making available of protected works in that centre, those patients were clearly not taken into account when the original authorisation for the work to be made available was given.
The broadcasting of television programmes on television sets, being intended to create a diversion for the patients of a rehabilitation centre during their treatment or waiting time, constituted the supply of additional services which had an impact on the establishment’s standing and attractiveness, which gave it a competitive advantage. So, the broadcasting had a profit-making nature, capable of being taken into account in order to determine the amount of remuneration due for that broadcast.
SCF was distinguished on the ground that the public which was the subject of the communication was caught by chance, rather than being targeted, and the patients of a dentist did not generally give any importance to such a broadcast, so that it did not increase the attractiveness of the practice. By contrast the public which was the subject of the communication in cases involving café-restaurants, hotels, spa establishments, or here the rehabilitation centre, was not merely caught by chance, but was targeted by their operators.
The decision attempts to reconcile existing ECJ case law on what amounts to a communication to the public under the Copyright and Rental Directives. It provides a useful list of the key criteria that should be applied in assessing whether there is a communication to the public.
It will be interesting to see whether the pending ECJ reference in GS Media follows the Advocate General’s opinion in that case or builds on the analysis in this decision given the seemingly different approaches to the question of whether there is an act of communication (C-160/15).
Case: Reha Training Gesellschaft für Sport- und Unfallrehabilitation mbH v Gesellschaft für musikalische Aufführungs- und mechanische Vervielfältigungsrechte (GEMA), C-117/15.
First published in the July 2016 issue of PLC Magazine and reproduced with the kind permission of the publishers. Subscription enquiries 020 7202 1200.