COMMUNICATION TO THE PUBLIC
- Judgment of the Court of 31 May 2016, C- 117/15, Reha Training
The rehabilitation centre operated by Reha Training provides for accident victims to receive post-operative treatment on its premises with a view to permitting their rehabilitation. Those premises include two waiting rooms and a training room in which, from June 2012 to June 2013, Reha Training allowed its patients to watch television programmes on television sets installed there. Those programmes could therefore be viewed by those who were at the rehabilitation centre for treatment. Reha Training never requested permission from GEMA to broadcast those programmes. According to the latter, such broadcasting constitutes an act of communication to the public of works belonging to the repertoire it manages. Therefore, it billed that company, for the period from June 2012 to June 2013, for sums it considered to be due for royalties on the basis of the rates in force, and on failing to receive payment it brought an action before the Amtsgericht Köln (Local Court, Cologne) seeking an order for Reha Training to pay damages and interest in respect of those amounts. Since the Amtsgericht Köln (Local Court, Cologne) granted that application, Reha Training lodged an appeal with the Landgericht Köln (Regional Court, Cologne) against that judgment.
The referring court asks essentially, first, if, in a case such as that in the main proceedings, in which it is alleged that the broadcast of television programmes by means of television sets that the operator of a rehabilitation centre has installed in its premises affects copyright and related rights of a large number of interested parties, in particular, composers, songwriters and music publishers, but also performers, phonogram producers and authors of literary works and their publishers, the question whether such a situation constitutes a ‘communication to the public’ must be determined with regard to both Article 3(1) of Directive 2001/29 and Article 8(2) of Directive 2006/115 or only one of those provisions and, second, whether the existence of such communication must be determined with regard to the same criteria. It also asks whether such a broadcast constitutes an ‘act of communication to the public’ within the meaning of one and/or the other of those provisions.
The Court concluded that in a case, in which it is alleged that the broadcast of television programmes by means of television sets that the operator of a rehabilitation centre has installed in its premises affects the copyright and related rights of a large number of interested parties, in particular, composers, songwriters and music publishers, but also performers, phonogram producers and authors of literary works and their publishers, it must be determined whether such a situation constitutes a ‘communication to the public’, within the meaning of both Article 3(1) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society and Article 8(2) of Directive 2006/115/EC of the European Parliament and of the Council of 12 December 2006 on rental right and lending right and on certain rights related to copyright in the field of intellectual property and in accordance with the same interpretive criteria. Furthermore, those two provisions must be interpreted as meaning that such a broadcast constitutes an act of ‘communication to the public’.
- Judgment of the Court of 15 March 2012, C-135/10, Marco del Corso
In the exercise of its activity as agent, SCF, a collecting agency for phonogram producers’ rights conducted negotiations with the Associazione Dentisti Italiani (Association of Italian Dentists) with a view to concluding a collective agreement quantifying the relevant equitable remuneration for any ‘communication to the public’ of phonograms, including such communication in private professional practices. As those negotiations were unsuccessful, on 16 June 2006 SCF brought an action before the Turin district court against Mr Marco Del Corso, seeking a declaration that he was broadcasting, by way of background music, in his private dental practice in Turin phonograms protected by property rights, and that, since it constituted ‘communication to the public’ within the meaning of the Law on copyright, international law and European Union law, such activity gave rise to the payment of equitable remuneration. In his defence, Mr Del Corso argued, that, in his practice, the music was being broadcast by radio and that SCF could claim copyright only if the medium on which the phonogram had been fixed was used, whereas remuneration for listening to the broadcast was payable not by the listener, but by the radio or television broadcaster. SCF appealed against the judgment of the Turin district court to the Corte d’appello di Torino (the referring Court).
The referring court asks, essentially, first, whether the Rome Convention, the TRIPS Agreement and the WPPT are directly applicable in the legal order of the European Union and whether individuals may rely on them directly. Next, it wishes to know whether the definition of ‘communication to the public’ in those international conventions is the same as that in Directives 92/100 and 2001/29 and, finally, in the event that the last question is answered in the negative, which source of law should prevail. Furthermore, the referring court asks whether the broadcasting, free of charge, of phonograms within private dental practices engaged in professional economic activity, for the benefit of patients of those practices and enjoyed by them without any active choice on their part, constitutes ‘communication to the public’ or ‘making available to the public’ for the purposes of the application of Article 3(2)(b) of Directive 2001/29 and whether such an act of transmission entitles the phonogram producers to the payment of remuneration.
The Court concluded that the provisions of the Agreement on Trade-Related Aspects of Intellectual Property Rights, which constitutes Annex 1C to the Agreement establishing the World Trade Organisation (WTO) signed at Marrakesh on 15 April 1994 and approved by Council Decision 94/800/EC of 22 December 1994 concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the agreements reached in the Uruguay Round multilateral negotiations (1986-1994) and of the World Intellectual Property Organisation (WIPO) Performances and Phonograms Treaty of 20 December 1996 are applicable in the legal order of the European Union. As the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations, adopted at Rome on 26 October 1961, does not form part of the legal order of the European Union it is not applicable there; however, it has indirect effects within the European Union. Individuals may not rely directly either on that convention or on the agreement or the treaty mentioned above. Furthermore, according to the Court, the concept of ‘communication to the public’ which appears in Council Directive 92/100/EEC of 19 November 1992 on rental right and lending right and on certain rights related to copyright in the field of intellectual property and Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society must be interpreted in the light of the equivalent concepts contained in the convention, the agreement and the treaty mentioned above and in such a way that it is compatible with those agreements, taking account of the context in which those concepts are found and the purpose of the relevant provisions of the agreements as regards intellectual property. The concept of ‘communication to the public’ for the purposes of Article 8(2) of Directive 92/100 must be interpreted as meaning that it does not cover the broadcasting, free of charge, of phonograms within private dental practices engaged in professional economic activity, such as the one at issue in the main proceedings, for the benefit of patients of those practices and enjoyed by them without any active choice on their part. Therefore such an act of transmission does not entitle the phonogram producers to the payment of remuneration.
- Judgment of the Court of 7 March 2013, C-607/11, ITV Broadcasting
The claimants in the main proceedings are commercial television broadcasters who own copyright under national law in the television broadcasts themselves and in films and other items which are included in their broadcasts. They are funded by advertising carried in their broadcasts. TVC offers an internet television broadcasting service. The service permits its users to receive, via the internet, ‘live’ streams of free-to-air television broadcasts, including television broadcasts transmitted by the claimants in the main proceedings. TVC ensures that those using its service can obtain access only to content which they are already legally entitled to watch in the United Kingdom by virtue of their television licence. The terms to which users must agree thus include the possession of a valid TV licence and a restriction of use of TVC services to the United Kingdom. The TVC website has the facility to authenticate the user’s location and to refuse access where the conditions imposed on users are not satisfied. The TVC service is funded by advertising. Audiovisual advertising is shown before the user is able to view the live stream. The advertisements already contained in the original broadcasts are left unchanged and sent to the user as part of the stream. There is also ‘in-skin’ advertising, which appears on the user’s computer or other equipment. For its activities, TVC uses four groups of servers, namely, (i) acquisition, (ii) encoding, (iii) origin and (iv) edge servers. The input signals used by TVC are the normal terrestrial and satellite broadcast signals transmitted by the claimants in the main proceedings. The signals are captured via an aerial and then passed to the acquisition servers, which extract individual video streams from the received signal without altering them. The encoding servers then convert the incoming streams into a different compression standard. Next, the origin servers prepare streams of video for sending over the internet in a variety of formats. Beyond that point, the channels offered by TVC are processed further only if at least one TVC subscriber has requested that channel. If there is no request for a given channel, the signal is discarded. Edge servers connect with a user’s computer or mobile telephone using the internet. When an edge server receives a request for a channel from a user, then, unless it is already streaming that channel to a different user, the edge server connects to the origin server which streams that channel. The software on the edge server creates a separate stream for each user who requests a channel through it. An individual packet of data leaving the edge server is thus addressed to an individual user, not to a class of users. The streams provided by the edge servers can be in a variety of different formats. The formats used are: Adobe Flash streams (for computers), HTTP streams (for Apple mobile devices) and RTSP streams (for Android and Blackberry mobile telephones). The claimants in the main proceedings instituted proceedings against TVC before the High Court of Justice (England and Wales) (Chancery Division) for breach of their copyright in their broadcasts and films, alleging, inter alia, that there is a communication of the works to the public prohibited by section 20 of the Copyright, Designs and Patents Act 1988, in the version applicable to the facts in the main proceedings, and by Article 3(1) of Directive 2001/29.
The High Court of Justice (England and Wales) (Chancery Division) asks, in essence, whether the concept of ‘communication to the public’, within the meaning of Article 3(1) of Directive 2001/29, must be interpreted as meaning that it covers a retransmission of the works included in a terrestrial television broadcast where the retransmission is made by an organisation other than the original broadcaster, by means of an internet stream made available to the subscribers of that other organisation who may receive the retransmission by logging on to its server, on the assumption that those subscribers are within the area of reception of the terrestrial television broadcast and may lawfully receive the broadcast on a television receiver. Also, the referring court asks, in essence, whether the answer to Question 1 is influenced by the fact that a retransmission, such as that at issue in the main proceedings, is funded by advertising and is therefore of a profit-making nature. Furthermore, the referring court asks in, essence, whether the answer to Question 1 is influenced by the fact that a retransmission, such as that at issue in the main proceedings, is made by an organisation, which is acting in direct competition with the original broadcaster.
The Court concluded that the concept of ‘communication to the public’, within the meaning of Article 3(1) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, must be interpreted as meaning that it covers a retransmission of the works included in a terrestrial television broadcast where the retransmission is made by an organisation other than the original broadcaster, by means of an internet stream made available to the subscribers of that other organisation who may receive that retransmission by logging on to its server, even though those subscribers are within the area of reception of that terrestrial television broadcast and may lawfully receive the broadcast on a television receiver. According to the Court, the answer to Question 1 is not influenced by the fact that a retransmission, such as that at issue in the main proceedings, is funded by advertising and is therefore of a profit-making nature. Furthermore, according to the Court, the answer to Question 1 is not influenced by the fact that a retransmission, such as that at issue in the main proceedings, is made by an organisation, which is acting in direct competition with the original broadcaster.
- Judgment of the Court of 24 November 2011, C- 283/10, Circul Globus Bucureşti
UCMR – ADA is a collective management organisation which handles music copyright. Between May 2004 and September 2007, Globus Circus, in its capacity as organiser of circus and cabaret performances, publicly disseminated musical works for commercial purposes without obtaining a ‘non‑exclusive’ licence from UCMR – ADA and without paying UCMR – ADA the appropriate copyright fees. On the view that Globus Circus had infringed its rights, UCMR – ADA brought proceedings before Tribunalul Bucureşti (District Court of Bucharest). In support of its action, it argued that, under the Copyright Law, exercise of the right to communicate musical works to the public is subject to compulsory collective management. Globus Circus then brought an appeal against the decision of Curtea de Apel Bucureşti before Înalta Curte de Casaţie şi Justiţie (the Supreme Court of Cassation and Justice) in the context of which it argued, inter alia, that Directive 2001/29 had been incorrectly transposed into Romanian national law.
The national court asks, in essence, whether Directive 2001/29 and, more specifically, Article 3(1) thereof, are to be interpreted as referring only to communication to a public which is not present at the place where the communication originates or also to any communication of a work which is carried out directly in a place open to the public using any means of public performance or direct presentation of the work.
The Court concluded that Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society and, more specifically, Article 3(1) thereof, must be interpreted as referring only to communication to a public which is not present at the place where the communication originates, to the exclusion of any communication of a work which is carried out directly in a place open to the public using any means of public performance or direct presentation of the work.
- Judgment of the Court of 7 December 2006, C- 306/05, SGAE
SGAE, the body responsible for the management of intellectual property rights in Spain, took the view that the use of television sets and the playing of ambient music within the hotel owned by Rafael, during the period from June 2002 to March 2003, involved communication to the public of works belonging to the repertoire which it manages. Considering that those acts were carried out in breach of the intellectual property rights attached to the works, SGAE brought an action for compensation against Rafael before the Juzgado de Primera Instancia (Court of First Instance) No 28, Barcelona (Spain). SGAE and Rafael both brought appeals before the Audiencia Provincial (Provincial Court) de Barcelona.
The Audiencia Provincial (Provincial Court) de Barcelona asks whether the distribution of a signal through television sets to customers in hotel rooms constitutes communication to the public within the meaning of Article 3(1) of Directive 2001/29 and whether the installation of television sets in hotel rooms constitutes, in itself, an act of that nature. Also the referring court asks whether the private nature of hotel rooms precludes the communication of a work to those rooms by means of television sets from constituting communication to the public within the meaning of Article 3(1) of Directive 2001/29.
The Court ruled that while the mere provision of physical facilities does not as such amount to communication within the meaning of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of copyright and related rights in the information society, the distribution of a signal by means of television sets by a hotel to customers staying in its rooms, whatever technique is used to transmit the signal, constitutes communication to the public within the meaning of Article 3(1) of that directive. Furthermore, the private nature of hotel rooms does not preclude the communication of a work by means of television sets from constituting communication to the public within the meaning of Article 3(1) of Directive 2001/29.
- Judgment of the Court of 16 February 2017, C- 641/15, Verwertungsgesellschaft Rundfunk
Verwertungsgesellschaft Rundfunk is a collecting society whose beneficiaries are numerous broadcasting organisations established in the territory of the Republic of Austria or in other Member States. It is authorised to exercise certain intellectual property rights belonging to its beneficiaries, in particular in the case of communication to the public by means of broadcasts. Hettegger Hotel Edelweiss, a company incorporated under Austrian law, operates the Edelweiss Hotel in Grossarl (Austria) which has a cable TV connection from which various television and radio programmes, including those produced and broadcast by the beneficiaries of the Verwertungsgesellschaft Rundfunk, are simultaneously redirected, unaltered and in full, via cable, to the TV sets installed in the hotel rooms. Verwertungsgesellschaft Rundfunk brought an action before the Handelsgericht Wien (Commercial Court, Vienna, Austria) seeking an order that Hettegger Hotel Edelweiss, first, provide it with information on the radio and television programmes that could be received and the number of hotel rooms concerned and, second, pay it damages.
The Handelsgericht Wien (Commercial Court, Vienna) asks if the condition of “against payment of an entrance fee” laid down in Article 8(3) of Directive 2006/115 is satisfied where through the TV set made available in each room of a hotel, the hotel operator provides access to the signal for various television and radio channels (“hotel room TV”), and for use of the room (including hotel room TV), the hotel operator charges a fee per room per night (room rate) which also includes use of the TV set and the television and radio channels to which access is thereby provided.
The Court concluded that Article 8(3) of Directive 2006/115/EC of the European Parliament and of the Council of 12 December 2006 on rental right and lending right and on certain rights related to copyright in the field of intellectual property must be interpreted as meaning that the communication of television and radio broadcasts by means of TV sets installed in hotel rooms does not constitute a communication made in a place accessible to the public against payment of an entrance fee.
Judgment of 14 Jun 2017, C-610/15 (Stichting Brein)
Ziggo and XS4ALL are internet access providers. A significant number of their subscribers use the online sharing platform ‘The Pirate Bay’. This platform allows users to share and upload, in segments (‘torrents’), works present on their computers1 . The files in question are, for the most part, copyright-protected works in respect of which the rightholders have not given the operators or users of that platform consent to share those works. Stichting Brein, a Netherlands foundation which safeguards the interests of copyright holders, has brought proceedings before the courts in the Netherlands seeking an order that would require Ziggo and XS4ALL to block the domain names and IP addresses of ‘The Pirate Bay’. The Hoge Raad der Nederlanden (Supreme Court of the Netherlands), before which the dispute has been brought, has decided to refer questions to the Court of Justice on the interpretation of the EU Copyright Directive2 . The Hoge Raad wishes, in essence, to ascertain whether a sharing platform such as ‘The Pirate Bay’ is making a ‘communication to the public’ within the meaning of the directive and may therefore be infringing copyright. In today’s judgment, the Court holds that the making available and management of an online sharing platform must be considered to be an act of communication for the purposes of the directive. The Court first draws attention to its previous case-law from which it can be inferred that, as a rule, any act by which a user, with full knowledge of the relevant facts, provides its clients with access to protected works is liable to constitute an ‘act of communication’ for the purposes of the directive. In the present case it is common ground that copyright-protected works are, through ‘The Pirate Bay’, made available to the users of that platform in such a way that they may access those works from wherever and whenever they individually choose. Whilst it accepts that the works in question are placed online by the users, the Court highlights the fact that the operators of the platform play an essential role in making those works available. In that context, the Court notes that the operators of the platform index the torrent files so that the works to which those files refer can be easily located and downloaded by users. ‘The Pirate Bay’ also offers — in addition to a search engine — categories based on the type of the works, their genre or their popularity. Furthermore, the operators delete obsolete or faulty torrent files and actively filtersome content.
The Court also highlights that the protected works in question are in fact communicated to a public. Indeed, a large number of Ziggo’s and XS4ALL’s subscribers have downloaded media files using ‘The Pirate Bay’. It is also clear from the observations submitted to the Court that the platform is used by a significant number of persons (reference is made on the online sharing platform to several tens of millions of users).
Moreover, the operators of ‘The Pirate Bay’ have been informed that their platform provides access to copyright-protected works published without the authorisation of the rightholders. In addition, the same operators expressly display, on blogs and forums accessible on that platform, their intention of making protected works available to users, and encourage the latter to make copies of those works. In any event, it is clear from the Hoge Raad’s decision that the operators of ‘The Pirate Bay’ cannot be unaware that this platform provides access to works published without the consent of the rightholders.
Lastly, the making available and management of an online sharing platform, such as ‘The Pirate Bay’, is carried out with the purpose of obtaining a profit, it being clear from the observations submitted to the Court that that platform generates considerable advertising revenues.
Judgment of 26 Apr 2017, C-527/15 (Stichting Brein)
Mr Wullems sells, over the internet, various models of a multimedia player under the name ‘filmspeler’. That device acts as a medium between a source of audiovisual data and a television screen. On that player, Mr Wullems installed an open source software that enabled files to be played through a user-friendly interface, via structured menus. In addition, integrated into the player were add-ons available on the internet whose function is to retrieve the desired content from streaming websites and make it start playing, on a simple click, on the multimedia player connected to a television. Some of those internet sites give access to digital content with the consent of the right holders, whilst others give access without their consent. According to the advertising, the multimedia player made it possible, in particular, to watch on a television screen, easily and for free, audiovisual material available on the internet without the consent of the copyright holders.
Stichting Brein, a Netherlands foundation for the protection of the interests of copyright holders, asked the Rechtbank Midden-Nederland (District Court of Midden-Nederland, Netherlands) to order Mr Wullems to cease selling multimedia players or offers of hyperlinks that illegally give users access to protected works. Stichting Brein submitted that, by marketing that multimedia player, Mr Wullems had made a ‘communication to the public’ in breach of the Netherlands law on copyright which transposed Directive 2001/29. The Rechtbank Midden Nederland decided to refer a question to the Court of Justice on that subject.
In its judgment today, the Court of Justice holds that the sale of a multimedia player, such as the one in question, is a ‘communication to the public’, within the meaning of the directive.
The Court recalls, in that regard, its case-law according to which the aim of the directive is to establish a high level of protection for authors. The concept of ‘communication to the public’ must therefore be interpreted broadly. In addition, the Court has already held that the availability, on a website, of clickable links to protected works published without any access restrictions on another website offers users of the first website direct access to those works. That is also the case in respect of a sale of the multimedia player in question.
In the same way, Mr Wullems, in full knowledge of the consequences of his conduct, preinstalls, on the multimedia player add-ons that make it possible to have access to protected works and to watch those works on a television screen. Such actions are not to be confused with the mere provision of physical facilities, referred to in the directive. In that regard, it is clear from the observations submitted to the Court that streaming websites are not readily identifiable by the public and the majority of them change frequently.
The Court also observes that, according to the referring court, the multimedia player has been purchased by a fairly large number of people. Furthermore, the communication at issue covers all persons who could potentially acquire that media player and have an internet connection. Thus, that communication is aimed at an indeterminate number of potential recipients and involves a large number of persons. In addition, the provision of the multimedia player is made with a view to making a profit, the price for the multimedia player being paid in particular to obtain direct access to protected works available on streaming websites without the consent of the copyright holders.
The Court also finds that temporary acts of reproduction, on that multimedia player, of a copyright protected work obtained by streaming on a website belonging to a third party offering that work without the consent of the copyright holder, cannot be exempted from the right of reproduction.
Under the directive, 3 an act of reproduction is only exempt from the right of reproduction if it satisfies five conditions, namely (1) the act is temporary, (2) it is transient or incidental, (3) it is an integral and technical part of a technological process, (4) the sole purpose of that process is to enable a transmission in a network between third parties by an intermediary or a lawful use of a work or subject matter, and (5) that act does not have any independent economic significance. Those conditions are cumulative in the sense that non-compliance with one of them will lead to the act of reproduction not being exempted. Furthermore, the exemption is to be applied only in certain special cases which do not impair the normal exploitation of the work or other subject matter and do not unreasonably prejudice the legitimate interests of the right holder.
In the present case and having regard, in particular, to the content of the advertising of the multimedia player and to the fact that the main attraction of that player for potential purchasers is the pre-installation of the add-ons concerned, the Court finds that the purchaser of such a player accesses a free and unauthorised offer of protected works deliberately and in full knowledge of the circumstances.
Furthermore, acts of temporary reproduction, on the multimedia player in question, of copyrightprotected works adversely affects the normal exploitation of those works and causes unreasonable prejudice to the legitimate interests of the copyright holders because it usually results in a diminution of the lawful transactions relating to those protected works.
Judgment of 1 Mar 2017, C-275/15 (ITV Broadcasting)
TVCatchup offers an Internet television retransmission service which enables its users to live-stream free-to-air UK television broadcasts – including those of the claimants, ITV and Channel 4 – over the Internet. Users in the UK only have access to content to which they are legally entitled as per their TV licence and geo-blocking ensures that access is restricted to the UK territory.
The CJEU has dealt with this case twice. First, when the UK High Court1 referred to the CJEU the question of whether TVCatchup’s streaming activities were a “communication to the public” under Article 3(1) of the Information Society Directive 2001/29/EC. The CJEU held that the retransmission of protected works and broadcasts over the Internet was a new communication to the public and therefore must be authorised by the authors concerned. It should be noted that under UK copyright law, broadcasting organisations enjoy an exclusive right to communicate their broadcasts to the public, subject to certain limitations and exceptions, in a similar way as authors.
Following this decision the High Court ruled that TVCatchup activities were in breach of copyright. However, the Court also found that TVCatchup could perhaps rely on the “reception area” exception in Section 73 of the UK’s Copyright, Design and Patents Act (CDPA). This provision applies when “a wireless broadcast made from a place in the UK is received and immediately re-transmitted by cable”. In this case copyright is not infringed “if and to the extent that the broadcast is made for reception in the area in which it is retransmitted by cable and forms part of a qualifying service”; qualifying services are defined as including (inter alia) broadcasting services from the BBC, Channel 4, Channel 5 or the public teletext service.
The broadcasters filed an appeal against this new High Court decision, concerning the interaction between the UK national defence provision and Article 9 of the InfoSoc Directive, “This Directive shall be without prejudice to provisions concerning in particular […] access to cable of broadcasting services […].” The Appeals Court stayed its proceedings and referred the question to the CJEU, whether “access to cable of broadcasting services” allows for national legislation stating that there is no breach of copyright “in the case of the immediate transmission by cable (including the Internet), in the area of initial broadcast, of works broadcast on TV channels subject to public service obligations.”
The conclusions of the first decision naturally influenced the second case. In both cases the CJEU emphasises the InfoSoc Directive’s objective of a high level of protection of authors – in this case broadcasters which enjoy the same rights under UK law – and ensuring appropriate rewards for the use of their work, or broadcast as the case may be.
– Communication to the public
Article 3 InfoSoc Directive states that Member States shall grant authors the exclusive right to permit or forbid any communication to the public of their works, by wire or wireless means. The CJEU underscored the intention of the EU legal framework that authors have the right to authorise each transmission or retransmission of a protected work by a specific technical means. The Court has a broad interpretation of the concept of the right of communication to the public as demonstrated in its earlier decision on TVCatchup, where it found that online retransmission was a new communication to the public, given the fact that the online retransmission of the broadcast uses a different technical means than the original communication. The question of whether there was a “new public” involved in the retransmission was thus deemed to be no longer relevant. Additionally, as the service targeted all persons with an internet connection and paying a UK TV licence, the retransmission was deemed to be communicated to a “public”. As a result the relevant rightholders had to give their consent to both means of transmission separately.
Nine days later, the CJEU decided in a quite similar case concerning the retransmission of broadcasts under Austrian copyright law. Section 17 paragraph 3 of the Austrian Copyright Act states that the simultaneous, complete and unaltered national relay of the ORF service by cables in Austria is considered as part of the original broadcast. Even though the provision favours cable companies to the detriment of copyright holders, the Austrian legislator decided to include the provision to ensure that the population would be provided with access to broadcasts.3 The referring Austrian Court asked whether the transmission of programmes in this provision is a “communication to the public” in the sense of the InfoSoc Directive 2001/29 and the Berne Convention. In this case the CJEU – in contrast to the earlier ITV Broadcasting and Others case – focused on the requirement of a “new public”, i.e. a public that has not been taken into account by the authors in granting the original authorization and which appeared to be the decisive factor (while the use of cable as a different technical means recedes into the background). According to the CJEU’s analysis the right-holders represented by the claimant are presumably aware of the fact that the broadcasts can be received by everyone in Austria when they granted the original authorization. As the relay by cable is conducted on the national territory, the CJEU followed that there is no “new public” if the relevant public has already been taken into consideration and thus the cable operator would not require, in this case, the agreement of those rightholders.
– Continued application of other legal provisions
The main legal issue of the second CJEU decision on TVCatchup was the relationship between national and European law. The CJEU referred to case law and determined the autonomous interpretation of the notion “access to cable of broadcasting services” throughout the European Union. The CJEU set out – in line with the opinion of the Advocate General – that “access to cable” and “retransmission by cable” were two different things, because access to cable did not designate the transmission of audiovisual content as it does in the notion of “retransmission”.
Moreover, the Court held that the purpose of Article 9 InfoSoc Directive is for provisions in areas other than those harmonised by the Directive to remain applicable. Given that none of the exceptions and limitations in the exhaustive list of Article 5 InfoSoc Directive apply in this case, it would not be in line with the objectives of the Directive, and especially the high protection it affords to authors, to interpret Article 9 as covering retransmissions. In consequence, a national law that would justify a copyright infringement when retransmitting (including via the internet) TV channels subject to public service obligations by cable, and even if limited to the reception area of the initial broadcast, cannot be considered as an example of “access to cable of broadcasting services”.
In this context the CJEU emphasised also that the InfoSoc Directive contains no legal basis justifying a limited degree of protection of public service content.
Retrieved from ebu:
Judgment of 16 Mar 2017, C-138/16 (AKM)
AKM is a copyright collecting society. Zürs.net operates a cable network installation in Zürs (Austria), by means of which it transmits television and radio broadcasts, some of which are broadcast initially by the national broadcasting corporation (ORF) and others are initially broadcast by other broadcasters. The referring court states that, at the time when the order for reference was made, approximately 130 subscribers were connected to Zürs.net’s cable network. AKM requires Zürs.net to provide it with information as to the number of subscribers connected, at several reference dates, to the cable network that it operates and as to the content broadcast. It also requests that, after the information to be provided has been checked, Zürs.net should pay the appropriate fee. Zürs.net takes the view that, under Paragraph 17(3)(2)(b) of the Austrian Law on copyright, in the version in BGBl. I 99/2015, concerning small installations for a maximum of 500 subscribers, the broadcasts which it distributes cannot be regarded as new broadcasts and that it is therefore under no obligation to provide the information required by AKM. AKM considers that provision to be incompatible both with EU law and with the Berne Convention.
In those circumstances, the Handelsgericht Wien (Commercial Court, Vienna, Austria) referred a preliminary question to the Court of Justice asking whether Article 3(1) or Article 5 of Directive 2001/29 or Article 11bis(1)(ii) of the Berne Convention must be interpreted as precluding national legislation, such as that at issue in the main proceedings, which provides that neither
– a simultaneous, full and unaltered transmission of programmes broadcast by the national broadcasting corporation, by means of cables in the national territory, nor
– a broadcast by means of an communal antenna installation, where the number of subscribers connected to that antenna does not exceed 500,
is subject to the requirement that authorisation be obtained from the author pursuant to the exclusive right of communication to the public.
The Court ruled the following:
Article 3(1) of Directive 2001/29 corresponds in substance to Article 11bis(1)(ii) of the Berne Convention. Thus, when the Court interprets the concept of ‘communication to the public’ within the meaning of Article 3(1), it does so in conformity with that convention provision, pursuant to the Court’s consistent case-law.
The concept of ‘communication to the public’ includes two cumulative criteria, namely, an ‘act of communication’ of a work and the communication of that work to a ‘public’. The act of communication refers to any transmission of the protected works, irrespective of the technical means or process used, and 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 in question.
The term ‘public’ is an indeterminate number of potential recipients and, moreover, a fairly large number of persons. The transmission of protected works by a body other than that which had obtained the original authorisation of communication is a ‘communication to the public’, when such works are transmitted to a new public, that is to say, to a public which was not taken into account by the authors of the protected works when they granted the original authorisation for the use of their works. Given that the distribution of the protected works by means of cables is carried out on the national territory and that the persons concerned have therefore been taken into account by the rightholders when they granted the original authorisation for the national broadcaster to broadcast those works, the public cannot be regarded as a new public.
–Article 3(1) of Directive 2001/29 and Article 11bis of the Berne Convention must be interpreted as not precluding national legislation which provides that the simultaneous, full and unaltered transmission of programmes broadcast by the national broadcasting corporation, by means of cables on national territory, is not subject, under the exclusive right of communication to the public, to the requirement that authorisation be obtained from the author, provided that it is merely a technical means of communication and was taken into account by the author of the work when the latter authorised the original communication, this being a matter for the national court to ascertain.
Regarding the conformity of the national law (which provides that the transmission of broadcasts by means of a communal antenna installation, to which a maximum of 500 subscribers are connected, is not regarded as being a new broadcast), with Article 5 of Directive 2001/29 paragraph 3(o) the Court ruled that:
Article 5(3)(o) of Directive 2001/29 states that Member States may provide for exceptions or limitations to the rights provided for in Articles 2 and 3 of that directive in certain cases of minor importance where exceptions or limitations already exist under national legislation, provided that they concern analogue uses only and do not affect the free circulation of goods and services within the European Union, without prejudice to the other exceptions and limitations contained in that article.
The specific provision of the national law may attract economic operators wishing to take advantage of it, and to lead to the continuous and parallel use of a multiplicity of communal antenna installations.
The criteria of the cumulative number of potential audiences with access to the same work at the same time is an important element in the concept of the ‘public’ and, consequently, a relevant element in communication to the public that is subject to the requirement that authorisation be obtained from the rightholder concerned.
Strict interpretation must be given to Article 5(3)(o) of Directive 2001/29, and in view of the objective of a high level of protection for copyright set out in recital 9 of that directive, national legislation, such as that at issue in the main proceedings, which permits a multiplicity of economic operators to distribute, without having obtained the authorisation of the authors, protected works in parallel by means of communal antenna installations with a limited capacity for connected subscribers, cannot be regarded, in particular due to its cumulative effect noted in paragraph 40 above, as being ‘a use in certain … cases of minor importance’ within the meaning of Article 5(3)(o).
Judgment of 16 Nov 2016, C-301/15 (Soulier and Doke)
In France, ‘out-of-print books’ are defined as books published before 1 January 2001 which are no longer commercially distributed or published in print or in a digital format. According to the French legislation, an approved collecting society, the SOFIA, is responsible for authorising the reproduction and communication, in digital form, of out-of-print books, it being understood that the authors of those books or their successors in title may oppose or put an end to the exercise of those rights under certain conditions.
Two French authors (Marc Soulier, who is better known as Ayerdhal and has since died, and Sara Doke) requested the annulment of a decree specifying certain aspects of the French legislation, claiming that that decree is not compatible with the copyright directive. In particular, those authors submit that the French legislation establishes an exception or limitation, not provided for in the directive, to the exclusive rights guaranteed to authors by the directive. The Conseil d’État français (French Council of State), before which the case has been brought, has referred a question to the Court of Justice on this subject.
In today’s judgment, the Court of Justice notes that, subject to the exceptions and limitations expressly provided for in the directive, authors have the exclusive right to authorise or prohibit the reproduction and communication to the public of their works.
However, it holds that the prior consent of an author to the use of one of his works can, under certain conditions, be expressed implicitly. For the existence of such consent to be accepted, the Court considers, in particular, that every author must be informed of the future use of his work by a third party and of the means at his disposal to prevent it if he so wishes.
The French legislation, as it currently stands, provides that the right to authorise the digital exploitation of out-of-print books is transferred to the SOFIA when the authors do not oppose it within a period of six months after the registration of their books in a database established to that effect.
The Court states that the Conseil d’État has not shown that this legislation included a mechanism ensuring authors are actually and individually informed. It is not therefore inconceivable, according to the Court, that some of the authors concerned are not aware of the envisaged use of their works and, consequently, are not able to adopt a position on it. In those circumstances, a mere lack of opposition on their part cannot be regarded as the expression of their implicit consent to the use of their works, especially since it cannot reasonably be presumed that, without opposition on their part, every author of ‘forgotten’ books is in favour of the ‘resurrection’ of those works, in view of their commercial use in a digital format. The Court adds that the pursuit of the objective enabling the digital exploitation of out-of-print books in the cultural interest of consumers and of society, while compatible with the directive as such, cannot justify a derogation not provided for by the EU legislature from the protection that authors are ensured by the directive.
Furthermore, the Court states that the French legislation enables authors to put an end to the commercial exploitation of their works in digital format either by mutual agreement with the publishers of those works in printed format or alone, on condition that they provide evidence that they alone hold the rights in their works.
The Court declares, in this respect, that the right of the author to put an end to the future exploitation of his work in a digital format must be capable of being exercised without having to depend on the concurrent agreement of persons other than those to whom the author had given prior authorisation to proceed with such a digital exploitation and, thus, on the agreement of the publisher holding only the rights of exploitation of that work in a printed format. Moreover, the author of a work must be able to put an end to the exercise of rights of exploitation of that work in digital format without having to submit beforehand to any additional formalities.
Judgment of 19 Nov 2015, C-325/14 (SBS Belgium)
Article 3(1) of Directive 2001/29 on the harmonisation of certain aspects of copyright and related rights in the information society must be interpreted as meaning that a broadcasting organisation does not carry out an act of communication to the public, within the meaning of that provision, when it transmits its program-carrying signals exclusively to signal distributors without those signals being accessible to the public during and as a result of that transmission, and where those distributors subsequently send those signals to their respective subscribers so that they may watch those programs unless the intervention of the distributors in question is merely a technical intervention, which it is for the national court to ascertain.
The concept of communication to the public within the meaning of Article 3(1) of Directive 2001/29 includes two cumulative criteria, namely an act of communication of a work and the communication of that work to a public. In respect of the communication to the public, the term public refers to an indeterminate number of recipients, potential television viewers, and concerns, moreover, a fairly large number of persons. In that regard, in a situation where the broadcasting organisation in question transmits the programme-carrying signals to specified individual distributors without potential viewers being able to have access to those signals, the works transmitted by that organisation are communicated not to the public, within the meaning of Article 3(1), but to specified individual professionals.
That being so, it cannot be ruled out from the outset that in some situations the subscribers of distributors may be considered to be the public in relation to the original transmission made by the broadcasting organisation. That is the case where it is after the intervention of those distributors that their subscribers are able to watch the television programmes and where the distribution of the work broadcast by a professional amounts to the supply of an autonomous service performed with the aim of making a profit, namely the subscription fee paid to that professional for access to the communication in question and, therefore, to the copyright-protected works. A transmission made by a professional in those circumstances is not just a technical means of ensuring or improving reception of the original broadcast in its catchment area. (see paras 15, 21-23, 25, 29-31, 34, operative part)
Judgment of 26 Mar 2015, C-279/13 (C More)
Article 3(2) of Directive 2001/29 on the harmonisation of certain aspects of copyright and related rights in the information society must be interpreted as not precluding national legislation extending the exclusive right of the broadcasting organisations referred to in Article 3(2)(d) as regards acts of communication to the public which broadcasts of sporting fixtures made live on internet, such as those at issue in the main proceedings, may constitute, provided that such an extension does not undermine the protection of copyright.
Thus, Article 3(2) of that directive does not affect the option open to the Member States, set out in Article 8(3) of Directive 2006/115 on rental right and lending right and on certain rights related to copyright in the field of intellectual property, read in conjunction with recital 16 to that directive, of providing for more protective provisions with regard to the broadcasting and communication to the public of transmissions made by broadcasting organisations than those which must be instituted in accordance with Article 8(3) of that directive. Such an option implies that the Member States may grant broadcasting organisations an exclusive right to authorise or prohibit acts of communication to the public of their transmissions on conditions different from those laid down in Article 8(3) and in particular transmissions to which members of the public may obtain access from a place individually chosen by them, it still being understood that, as provided for in Article 12 of Directive 2006/115, such a right must not affect the protection of copyright in any way.
(see paras 35-37, operative part)
Judgment of 27 Feb 2014, C-351/12 (OSA)
Article 3(1) of Directive 2001/29 on the harmonisation of certain aspects of copyright and related rights in the information society must be interpreted as precluding legislation of a Member State which excludes the right of authors to authorise or prohibit the communication of their works, by a spa establishment which is a business, through the intentional distribution of a signal by means of television or radio sets in the bedrooms of the establishment’s patients. Article 5(2)(e), (3)(b) and (5) of that directive is not such as to affect that interpretation.
First of all, the concept of ‘communication’, within the meaning of that provision, must be construed as referring to any transmission of the protected works, irrespective of the technical means or process used.
Furthermore, it must be noted that the term ‘public’ in that provision refers to an indeterminate number of potential recipients and implies, moreover, a fairly large number of persons. As regards that last criterion specifically, the cumulative effect of making the works available to potential recipients should be taken into account. It is in particular relevant in that respect to ascertain the number of persons who have access to the same work at the same time and successively. A spa establishment is likely to accommodate, both at the same time and successively, an indeterminate but fairly large number of people who can receive broadcasts in their rooms.
Lastly, in order for there to be a ‘communication to the public’ within the meaning of Article 3(1) of Directive 2001/29, it is also necessary for the work broadcast to be transmitted to a new public, that is to say, to a public which was not taken into account by the authors of the protected works when they authorised their use by the communication to the original public. Like the guests of a hotel, the patients of a spa establishment constitute such a new public. The spa establishment is the organisation which intervenes, in full knowledge of the consequences of its action, to give access to the protected work to its patients. In the absence of that intervention, its patients would not, in principle, be able to enjoy the broadcast work. (see paras 25, 27-29, 31, 32, 41, operative part 1)
Article 3(1) of Directive 2001/29 on the harmonisation of certain aspects of copyright and related rights in the information society must be interpreted as meaning that it cannot be relied on by a collecting society in a dispute between individuals for the purpose of setting aside national legislation contrary to that provision. However, the national court hearing such a case is required to interpret that legislation, so far as possible, in the light of the wording and purpose of the directive in order to achieve an outcome consistent with the objective pursued by the directive.
Nevertheless, the obligation on a national court to refer to the content of a directive when interpreting and applying the relevant rules of domestic law is limited by general principles of law, and that obligation cannot serve as the basis for an interpretation of national law contra legem. (see paras 45, 48, operative part 2) (see para. 50) (see para. 56)
Article 17(11) of Directive 2006/123 on the harmonisation of certain aspects of copyright and related rights in the information society must be interpreted as excluding the service provided by a collecting society to a user of protected works from the scope of Article 16 of that directive.
Accordingly, since Article 16 of Directive 2006/123 is inapplicable, it must be interpreted as not precluding national legislation which reserves the exercise of collective management of copyright in respect of certain protected works in the territory of the Member State concerned to a single copyright collecting society and thereby prevents users of such works from benefiting from the services provided by another collecting society established in another Member State.
(see paras 65, 66, operative part 3)
National legislation which reserves the exercise of collective management of copyright in respect of certain protected works in the territory of the Member State concerned to a single collecting society and thereby prevents users of such works from benefiting from the services provided by another collecting society established in another Member State and prohibiting, in practice, the provision of such a service, constitutes a restriction on the freedom to provide services. That restriction cannot be justified unless it serves overriding reasons in the public interest, is suitable for securing the attainment of the public interest objective which it pursues and does not go beyond what is necessary in order to attain it.
In that regard, the protection of intellectual property rights constitutes such an overriding reason in the public interest. Furthermore, legislation which grants a collecting society a monopoly over the management of copyright in relation to a category of protected works in the territory of the Member State concerned must be considered as suitable for protecting intellectual property rights, since it is liable to allow the effective management of those rights and an effective supervision of their respect in that territory.
It does not appear, as regards a communication of works to the public, that — as EU law stands at present — there is another method allowing the same level of copyright protection as the territory-based protection and thus territory-based supervision of those rights, a method of which legislation such as that at issue forms a part. In those circumstances, it cannot be found that such legislation, because it prevents a user of the protected works from benefiting from the services provided by a collecting society established in another Member State, goes beyond what is necessary in order to attain the objective of protecting intellectual property rights.
Consequently, Article 56 TFEU must be interpreted as not precluding such legislation of a Member State. (see paras 69-72, 76, 78, 79, operative part 3)
The mere creation of a dominant position through the grant of exclusive rights within the meaning of Article 106(1) TFEU is not in itself incompatible with Article 102 TFEU. A Member State will be in breach of the prohibitions laid down by those two provisions only if the undertaking in question, merely by exercising the exclusive rights granted to it, is led to abuse its dominant position or where such rights are liable to create a situation in which that undertaking is led to commit such abuses.
(see para. 83)
Article 102 TFEU must be interpreted as not precluding legislation of a Member State which reserves the exercise of collective management of copyright in respect of certain protected works in the territory of the Member State concerned to a single collecting society and thereby prevents users of such works from benefiting from the services provided by another collecting society established in another Member State.
The mere fact that a Member State grants a collecting society a monopoly over the management of copyright relating to a category of protected works in the territory of that Member State is not, as such, contrary to Article 102 TFEU.
However, where such a collecting society imposes fees for its services which are appreciably higher than those charged in other Member States and where a comparison of the fee levels has been made on a consistent basis, that difference must be regarded as indicative of an abuse of a dominant position within the meaning of Article 102 TFEU. Moreover, if such an abuse were found and if it were attributable to the legislation applicable to that collecting society, that legislation would be contrary to Article 102 TFEU and Article 106(1) TFEU.
It is for the referring court to examine, if necessary, whether such a situation exists in the case in the main proceedings.
Judgment of 4 Oct 2011, C-403/08 (Premier League)
The Football Association Premier League (‘FAPL’) administers the Premier League, the leading professional football league competition in England, and markets the television broadcasting rights for the matches of this competition. Under an open competitive tender procedure, it grants broadcasters an exclusive broadcasting right for live transmission of the Premier League matches on a territorial basis. In practice, the territorial basis usually corresponds to a single Member State, which means that viewers can watch only the matches broadcasted by the broadcasters established in the Member State in which they are resident.
In order to protect such territorial exclusivity and to prevent the public from receiving broadcasts from outside the Member State concerned, each broadcaster undertakes, in a licence agreement concluded with the FAPL, to encrypt its satellite signal and to transmit it, thus encrypted, by satellite only to the subscribers of the territory awarded to it. Consequently, the licence agreement prohibits broadcasters from supplying decoder cards to persons wishing to view their programmes outside the Member State for which the licence was granted.
The disputes at the origin of the present cases concern attempts to circumvent this exclusivity. The managers of certain public houses in the United Kingdom have in fact started to use foreign decoder cards, issued by a Greek broadcaster to subscribers resident in Greece, to access Premier League matches. They buy from a dealer a card and a decoder box at lower prices than those charged by the holder of the transmission rights in the United Kingdom. They are not therefore using ‘pirate decoder cards’ but ‘foreign decoding devices’ which in principle are reserved solely to the residents of the State in which they are marketed. Some have used devices to transmit the matches in question in public houses.
Considering that such activities undermine the exclusivity of the television broadcasting rights and the value of these rights, the FAPL is trying to put an end to them by judicial means. It is in this context that the High Court of Justice of England and Wales referred several questions to the Court of Justice relating to the interpretation of Union law. The Court replied, drawing a distinction between questions relating to the broadcasting of Premier League matches and those relating to the use of the broadcasts following their reception.
With regard, firstly, to broadcasting, the Court specifies that the foreign decoding devices are not ‘illicit devices’ within the meaning of Conditional Access Directive 98/84/EC, even though they were procured or enabled by the provision of a false name and address and, in certain cases, used in breach of contractual terms permitting their use only for private purposes. Activities implying the use of foreign decoding devices of this kind and their possible prohibition by national legislation do not come under the field coordinated by that Directive.
Having specified this, the Court finds that national legislation which prohibits the import, sale and use of foreign decoding cards is contrary to the freedom to provide services and cannot be justified either by the objective of protecting intellectual property rights or by the objective of encouraging the public to attend football stadiums.
Firstly, concerning the objective of protecting intellectual property rights, the Court points out that the FAPL cannot claim copyright in the Premier League matches themselves, as these sporting events cannot be considered as an author’s own intellectual creation and, therefore, as ‘works’ within the meaning of Union copyright.
Secondly, even assuming that national law granted comparable protection to sporting events – which, in principle, would be compatible with Union law – a prohibition on the use of foreign decoder cards would go beyond what is necessary to ensure appropriate remuneration for the rights holders concerned.
In this respect, the Court points out that the object of intellectual property rights is to ensure for their holders the right to exploit commercially the protected subject-matter and therefore not to obtain the highest possible remuneration, but appropriate remuneration from them. To calculate this appropriate remuneration, it is possible to take into account, on the sale of the rights, the actual and potential audience both in the Member State of broadcast and in any other Member State in which the broadcasts are received. There is therefore no need to restrict the free movement of services within the Union. On the other hand, appropriate remuneration cannot include the payment of a premium by the television channels to reserve absolute territorial exclusivity. Such a practice may in fact result in artificial price differences between the partitioned national markets, these being irreconcilable with the fundamental aim of the Treaty, which is completion of the internal market, and with the aim of the establishment of a single programme production and distribution market pursued by the Audiovisual Media Services Directive and the Satellite Broadcasting Directive.
Next, as regards the objective of encouraging the public to attend stadiums, the Court considers that even if it were capable of justifying a restriction on the fundamental freedoms, it would suffice to include a prohibition to broadcast at certain times in the licence agreement between the rights holders and the broadcasters.
The legislation in question is therefore contrary to Article 56 TFEU. This conclusion is affected neither by the fact that the foreign decoding device, which allows the programmes to be received, has been procured or enabled by giving a false identity and a false address, with the intention of circumventing the territorial restriction at issue, nor by the fact that this device is used for commercial purposes although it was restricted to private use. On this last point, the Court specifies that there is nothing to prevent the amount of the remuneration agreed between the rights holders concerned and the broadcasters from being calculated on the basis of the fact that some customers use the decoding devices commercially whereas others use them privately, which would result in a different fee for access to this service. The risk of an illicit use for commercial purposes would be no greater in cross-border than in purely internal situations.
The Court also judges that the clauses by which the rights holders oblige broadcasters not to provide decoding devices with a view to their use outside the territory covered by the licence are contrary to the competition rules of the Treaty. Such clauses prohibit the broadcasters from effecting any cross-border provision of services that relates to the sporting events at issue, which enables each broadcaster to be granted absolute territorial exclusivity in the area covered by its licence and, thus, all competition between broadcasters to be eliminated.
Secondly, regarding the rules relating to the use of the broadcasts following their reception, and in reply to the questions raised on the interpretation of Copyright Directive 2001/29/EC, the Court emphasises, first of all, that only the opening video sequence, the Premier League anthem, pre-recorded films showing highlights of recent Premier League matches, and various graphics can be considered as ‘works’ and therefore be protected by copyright. On the other hand, the matches themselves are not works which would enjoy such protection.
Moreover, the Court defines the concept of communication broadly as covering any broadcasting of the protected works, irrespective of the means or technical procedure used. The proprietor of a public house, when he intentionally transmits broadcast works, via a television screen and speakers, to the customers present in that establishment, effects such a ‘communication’.
Furthermore, this retransmission constitutes a ‘communication to the public’ within the meaning of the Copyright Directive, for which the authorisation of the author of the works is necessary. In fact, the works in question are transmitted to an additional public which was not considered by the authors when they authorised the broadcasting of their works. The Court also points out that the public concerned was not present at the place where the communication originated. Finally, it notes that this communication is of a profit-making nature, which is not irrelevant for the interpretation it makes.
Judgement of 15 March 2012 C-162/10 – Phonographic Performance (Ireland))
EU law requires the Member States to provide, in their legislation, a right to a single equitable remuneration for producers of phonograms published for commercial purposes, to be paid by the user of such phonograms for broadcasting or for any communication to the public. However, such equitable remuneration need not be paid in the case of ‘private use’.
Phonographic Performance (Ireland) Limited (‘PPL’) is a collecting society which represents the rights which phonogram producers hold over sound recordings or phonograms in Ireland.
PPL brought an action before the High Court (Commercial Division, Ireland) against Ireland seeking a declaration that Ireland had acted in breach of Union law in exempting hotel operators from the obligation to pay equitable remuneration for the use of phonograms in hotel bedrooms in Ireland. PPL also sought damages to make good that breach. Against that background, the Irish court referred several questions to the Court of Justice.
In today’s judgment, the Court first considers whether a hotel operator which provides in guest bedrooms televisions and/or radios to which it distributes a broadcast signal is a ‘user’ making a ‘communication to the public’ of a phonogram which may be played in a broadcast for the purposes of Union law.
In that connection, the Court recalls that it has held that the concept of ‘communication to the public’ requires an individual assessment and that, for the purposes of such an assessment account has to be taken of several complementary criteria, which are not autonomous and are interdependent.
Those criteria include, first and foremost, according to the case-law of the Court, the indispensable role of the user. The user makes a communication to the public when it intervenes, in full knowledge of the consequences of its action, to give access to a broadcast containing the protected work to its customers. Second, the Court has identified certain aspects of the concept of public. The term ‘public’ refers to an indeterminate number of potential listeners and a fairly large number of persons. Third, the Court has held that the profit-making nature of ‘communication to the public’ is also a relevant criterion. It is thus understood that the public which is the subject of the communication is both targeted by the user and receptive, in one way or another, to that communication, and not merely ‘caught’ by chance.
In the present case, those criteria are fulfilled. Thus, the role of a hotel operator who provides televisions and/or radios in guest bedrooms is indispensable, since the guests of such a hotel are able to listen to those phonograms only as a result of the deliberate intervention of that operator. As regards, next, the guests of that establishment, they constitute an indeterminate number of potential listeners, insofar as the access of those guests to the services of that establishment is the result of their own choice and is limited only by the capacity of the establishment in question. As regards the number of potential listeners, the Court has held that the guests of a hotel constitute a fairly large number of persons, such that they must be considered to be a “public”. Finally, the broadcasting of phonograms by a hotel operator is of a profit-making nature. Indeed, the action of the hotel by which it gives access to the broadcast work to its customers constitutes an additional service which has an influence on the hotel’s standing and, therefore, on the price of rooms. Moreover, it is likely to attract additional guests who are interested in that additional service.
Consequently, such an operator is a ‘user’ making a ‘communication to the public’ of a phonogram which may be played in a broadcast for the purposes of EU law.
On that basis, that operator is obliged to pay equitable remuneration for the broadcast of a phonogram, in addition to that paid by the broadcaster. When a hotel operator communicates a broadcast phonogram in its guest bedrooms, it is using that phonogram in an autonomous way and transmitting it to a public which is distinct from and additional to the one targeted by the original act of communication. Moreover, the hotel operator derives economic benefits from that transmission which are independent of those obtained by the broadcaster or the producer of the phonograms.
The Court also holds that a hotel operator which provides in guest bedrooms, not televisions and/or radios, but other apparatus and phonograms in physical or digital form which may be played on or heard from such apparatus, is a ‘user’ making a ‘communication to the public’ of a phonogram within the meaning of Union law. It is therefore obliged to pay ‘equitable remuneration’ under that provision for the transmission of those phonograms.
Moreover, according to the Court, although EU law provides for a limitation to the right to equitable remuneration in the case of ‘private use’, it does not allow Member States to exempt a hotel operator which makes a ‘communication to the public’ of a phonogram from the obligation to pay such remuneration.
In that connection, the Court makes clear that it is not the private nature or otherwise of the use of the work by guests of a hotel which is relevant in order to determine whether a hotel operator may rely on the limitation based on ‘private use’ but whether the use made of the work by the operator itself is private or not. The ‘private use’ of a protected work communicated to the public by its user constitutes a contradiction in terms, since ‘public’ is, by definition, ‘not private’.
Order of 18 Mar 2010, C-136/09 (Sillogikis)
Reference for a preliminary ruling – Arios Pagos – Interpretation of Article 3(1) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (OJ 2001 L 167, p. 10) – Concept of ‘communication to the public’ – Works transmitted by means of television sets installed in hotel rooms and connected to the central antenna of the hotel with no other action by the hotel to ensure reception of a signal by hotel customers
Operative part of the order: The hotelier, by installing televisions in his hotel rooms and by connecting them to the central antenna of the hotel, thereby, and without more, carries out an act of communication to the public within the meaning of Article 3(1) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society.
Judgment of 14 Jul 2005, C-192/02 (Lagardère)
1. Where a broadcasting company transmitting from the territory of one Member State uses, in order to extend the transmission of its programmes to a part of its national audience, a transmitter situated nearby on the territory of another Member State, Directive 93/83 on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission does not preclude the fee for phonogram use being governed not only by the law of the Member State in whose territory the broadcasting company is established but also by the legislation of the Member State in which, for technical reasons, the terrestrial transmitter broadcasting to the first State is located. (see para. 44, operative part 1)
2. Article 8(2) of Directive 92/100 on rental right and lending right and on certain rights related to copyright in the field of intellectual property must be interpreted as meaning that, for determination of the equitable remuneration mentioned in that provision, the broadcasting company is not entitled unilaterally to deduct from the amount of the royalty for phonogram use payable in the Member State in which it is established the amount of the royalty paid or claimed in the Member State in whose territory the terrestrial transmitter broadcasting to the first State is located.
Article 2 of Directive 93/83 on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission must be interpreted as requiring a satellite package provider to obtain authorisation from the right holders concerned for its intervention in the direct or indirect transmission of television programmes, unless the right holders have agreed with the broadcasting organisation concerned that the protected works will also be communicated to the public through that provider, on condition, in the latter situation, that the provider’s intervention does not make those works accessible to a new public. (see para. 84, operative part)
Article 9(2) of Directive 93/83 on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission is to be interpreted as meaning that, where a collecting society is deemed to be mandated to manage the rights of a copyright owner or holder of related rights who has not transferred the management of his rights to a collecting society, that society has the power to exercise that rightholder’s right to grant or refuse authorisation to a cable operator for cable retransmission and, consequently, its mandate is not limited to management of the pecuniary aspects of those rights.
However, that directive does not preclude assignment of the retransmission right, which may be made both on the basis of a contract and by virtue of a legal presumption, and thus does not prevent an author, artist, performer or producer from losing, pursuant to a national provision, his status of ‘rightholder’ of that right within the meaning of Article 9(2) of the directive, with the consequential severance of all legal links existing under that provision between him and the collecting society.
The question whether the reception by a hotel establishment of satellite or terrestrial television signals and their distribution by cable to the various rooms of that hotel is an ‘act of communication to the public’ or ‘reception by the public’ is not governed by Directive 93/83 on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission, and must consequently be decided in accordance with national law.
- Judgment of 22 December 2010, C-393/09, Bezpečnostní softwarová asociace – Svaz softwarové ochrany v. Ministerstvo kultury
On 9 April 2001, BSA, as an association, applied to the Ministerstvo kultury for authorisation for the collective administration of copyrights to computer programs, under Paragraph 98 of the Copyright Law. BSA defined the extent of those rights in a letter dated 12 June 2001.That application was refused, and the administrative action brought against that refusal was dismissed. BSA then brought a legal action against those decisions before the Vrchní soud v Praze (High Court, Prague). Following the setting aside of those two rejection decisions by the Nejvyšší správní soud (Supreme Administrative Court), to which the case was referred, on 14 April 2004 the Ministerstvo kultury adopted a fresh decision by which it again dismissed BSA’s application. BSA therefore brought an administrative appeal before the Ministerstvo kultury, which annulled that rejection decision. On 27 January 2005, the Ministerstvo kultury adopted a new decision, by which it rejected BSA’s application yet again on the ground, firstly, in particular, that the Copyright Law protects only the object code and the source code of a computer program, but not the result of the display of the program on the computer screen, since the graphic user interface was protected only against unfair competition. Secondly, it stated that the collective administration of computer programs was indeed possible in theory, but that mandatory collective administration was not an option and that voluntary collective administration served no purpose. BSA lodged an appeal against that decision, which was dismissed on 6 June 2005 by a decision of the Ministerstvo kultury. The association then challenged the latter decision before the Městský Soud v Praze (Regional Court, Prague). In its action, BSA submitted that the definition of a computer program in Paragraph 2(2) of the Copyright Law also covers the user interface. In its submission, a computer program can be perceived at the level both of the source or object code and of the method of communication (communication interface). The Mĕstský soud v Praze having dismissed its action, BSA appealed on a point of law before the Nejvyšší správní soud. BSA takes the view that a computer program is used when it is shown in a display on user screens and that, consequently, such use must be protected by copyright. As regards the interpretation of the provisions of Directives 91/250 and 2001/29, the Nejvyšší správní soud decided to stay the proceedings and refer the following questions to the Court for a preliminary ruling:
The national court asks, in essence, whether television broadcasting of a graphic user interface constitutes communication to the public of a work protected by copyright within the meaning of Article 3(1) of Directive 2001/29.
The court rules that Television broadcasting of a graphic user interface does not constitute communication to the public of a work protected by copyright within the meaning of Article 3(1) of Directive 2001/29.