HomeInsightsAdvocate General opines on meaning of “communication to the public” under Copyright Directive (2001/29/EC) and Rental and Lending Right Directive (2006/115/EC).

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The defendant, Reha-Training Gesellschaft für Sport- und Unfallrehabilitation mbH, operated a rehabilitation centre in Germany offering post-operative treatment for accident victims.  The centre had installed TV sets in three of its rooms for the benefit of its patients.

The claimant, Gesellschaft für musikalische Aufführungs- und mechanische Vervielfältigungsrechte (GEMA), which is responsible for the collective management of music copyright in Germany, claimed that Reha-Training’s actions constituted an act of “communication to the public” of works belonging to the repertoire it managed.  Reha-Training refused to pay fees to GEMA, which therefore issued proceedings in Cologne, Germany, claiming damages calculated on the basis of the rates in force for the period June 2012 to June 2013.

At first instance, the Cologne court found in favour of GEMA.  Reha-Training appealed the decision.  Given the decision of the Court of Justice of the European Union in Case C-135/10 Società Consortile Fonografici v Marco Del Corso, in which the CJEU had found that a dentist who broadcast sound recordings free of charge in his private dental practice was not undertaking a “communication to the public”, the Cologne appeal court referred four questions to the CJEU concerning the interpretation of “communication to the public” in Article 3(1) of the Copyright Directive and in Article 8(2) of the Rental  and Lending Right Directive.

In Advocate General Bot’s opinion, the concept of “communication to the public” is used in different contexts under each Directive.  Article 3(1) of the Copyright Directive grants authors a right that is preventative in nature to prohibit users communicating to the public the author’s work without permission, while Article 8(2) of the Rental and Lending Right Directive grants performers and producers of sound recordings a right that is compensatory in nature and allows the collection of royalties once the sound recording has been communicated to the public.  However, this did not mean that different assessment criteria should be used when interpreting each provision.

This case, AG Bot said, involved both the rights of authors and the rights of performers and producers of sound recordings, therefore both Article 3(1) of the Copyright Directive and Article 8(2) of the Rental and Lending Right Directive applied.

AG Bot noted that the CJEU has, in previous judgments, identified four assessment criteria in interpreting “communication to the public”: (i) the existence of an “act of communication” for which the role of the user is indispensable; (ii) the communication of a protected work to a “public”; (iii) the “new” character of that public; and (iv) the “profit-making” nature of the communication.

In terms of an “act of communication”, emphasis must be placed on the indispensable role of the user, who must act intentionally, the AG said.  An act of communication will be made, he continued, where the user intervenes, in full knowledge of the consequences of its actions, to give access to protected work to its clients.  Such intervention must not be solely a technical means of ensuring or improving reception of the original broadcast, but an act without which customers would be unable to enjoy the broadcast works.  However, the concept of “communication” must be construed broadly as covering any transmission of a protected work, irrespective of the technical means or process used.

In addition, the AG noted, the CJEU has already ruled that the operators of a public house, a hotel or a spa perform an act of communication when they deliberately transmit protected works to their clientele, by intentionally distributing a signal through TV or radio sets that they have installed.  There was no doubt, therefore, that Reha-Training had, in full knowledge of the consequences of its actions, made protected works accessible to the public , i.e. its patients, and performed an “act of communication”.

As for the meaning of “public”, the AG noted that this refers to an indeterminate number of potential recipients, which implies a fairly large number of persons.  Further, regard must be had not only to the number of persons who have access to the same work at the same time, but also to the number of persons who have access to it successively.

As for the decision in SCF v Marco del Corso, in which the CJEU ruled that the patients of a dentist constituted a determinate circle of potential recipients and the number of them with access to the same work at the same time was not large, the AG said that the CJEU’s “strict approach” in that judgment “would seem to depart from … settled case-law”, and its scope “should not be extended, but limited to the specific factual circumstances” in that case.  To apply the CJEU’s reasoning in that judgment to a situation such as this would, the AG said, “be too restrictive vis-à-vis copyright and related rights and contrary to the high level of protection desired by the Union legislature and applied by the Court itself in its settled case-law”.

In the AG’s opinion Reha-Training’s patients formed “a constantly changing group with each visit”, thereby constituting “an indeterminate group of persons, which is, moreover, potentially large”.  Given that consultations lasted between 30 and 60 minutes on average, the patients followed in quicker succession than the clients of a hotel, public house or spa, he said.  The rehabilitation centre was therefore likely to receive, at the same time and successively, an indeterminate, large number of patients who had access to protected works, meaning that they should be considered a “public”.

As for the concept of a “new public”, the AG noted that this required the existence of a public different from that envisaged by the author of the work in question.  By intentionally transmitting broadcast signals to TV sets installed on its premises, Reha-Training had made it possible, outside its own private circle, for protected works to be viewed and heard by its patients, i.e. an additional and indirect public that had not been contemplated by the authors when they authorised the broadcasting of their works.

Finally, in terms of the “profit-making nature” of “communication to the public”, although this was “not an essential condition”, in this case the condition had in fact been met.  The broadcasting of TV programmes by Reha-Training was intended to create a diversion for the patients and to make the waiting time seem shorter.  These were therefore “additional services” which, although they did not have any medical benefit, had an impact on the establishment’s standing and attractiveness, thereby giving it a competitive advantage, the AG said.

In the AG’s opinion, therefore, Reha-Training’s actions did indeed constitute a “communication to the public” within the meaning of Article 3(1) of the Copyright Directive and Article 8(2) of the Rental and Lending Right Directive.  (Case C-117/15 Reha-Training Gesellschaft für Sport- und Unfallrehabilitation mbH v Gesellschaft für musikalische Aufführungs- und mechanische Vervielfältigungsrechte (GEMA) (23 February 2016) — to access the judgment in full, go to the curia search form, type in the case number and follow the link).

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