In a most recent decision, the German Federal Court of Justice negates the infringement of the right of cable retransmission in cases of joint antenna systems for one building. There is no “communication to the public” as the targeted group within the building is definable by their characteristic of all being inhabitants (Case Ref.: I ZR 228/14, German press release).
The defendant was a condominium owners association owning a building with more than 300 apartments. The building was fitted with a cable network that retransmitted the signal of the joint antenna system to each apartment.
The competent German collecting society GEMA brought a lawsuit against the association. GEMA is most known for collecting copyright levies in the music segment but also takes responsibility for levies relating to cable retransmissions. The collecting agency argued that the retransmission of the antenna signal by means of an internal cable network infringes the right of cable retransmission.
In 2013, the Regional Court of Munich dismissed GEMA’s action in first instance (Case Ref.: 21 O 16054/12). Upon appeal, the Higher Regional Court of Munich confirmed the dismissal in September 2014 (Case Ref.: 6 U 2619/13). On 17 September 2015, the German Federal Court handed down its decision.
The judges approve the assessment of the first two instances. They deny an infringement ofSec. 20b of the German Copyright Act (UrhG) which holds the right of cable transmission. According to the court, the matter at issue lacks the requirement of a communication to the public as set out in Art. 3 (1) of the InfoSoc Directive 2001/29. This Community law provision has been implemented in domestic German law through Sec. 15 (3) UrhG.
As regards the exact interpretation of the term “communication to the public“, the judges strictly rely on European precedent. According to the Court of Justice of the European Union (CJEU), the legal concept and understanding of “communication to the public” necessitates the addressing of an indefinite number of people. This is not the case if the communication is directed to a specific audience or even a private group of people (see CJEU, 31 March 2015, Case Ref.: C‑279/13, our post – C More Entertainment vs. Sandberg). Sec. 15 (3) UrhG refers to a “personal connection” as the criteria for negating a communication to the public. However, the German Federal Court makes clear that this language has to be construed and interpreted in consistency within Art. 3 (1) of the InfoSoc Directive 2001/29. Furthermore, the judges point out that there is no CJEU judgment suggesting that the notion of a private group requires that only a moderate number of persons are involved.
In consequence, the German Federal Court reaches the conclusion that the defendant had not retransmitted the antenna signal to the public. The audience is seen to be a definable group due to the fact that all group members share the characteristic of being an inhabitant of the very same building. According to the judgment, there is no significant difference whether the owners of the apartments use a joint antenna system and retransmit the signal via an internal cable network or whether they all have their own antenna.
The legal concept of a “communication to the public” has occupied quite a number of court rooms over the last years. This is true for Internet-related matters as well as for the retransmitting of antenna and cable signals. With the continuing development of technical broadcasting and growing options of individualized programs the term “public” and its interpretation receives more and more attention. It seems difficult to determine where to draw the line. With the EU Commission having launched its Digital Single Market Strategy (see our post), we will see some change in the legal environment including the review and revision of theSatellite and Cable Directive 93/83. If, as we hope, the legislating institutions give more guidance as to what shall be subject to statutory levies we will post an update.