February 20, 2017

Article 8(3) states that “Member States shall provide for broadcasting organisations the exclusive right to authorise or prohibit the rebroadcasting of their broadcasts by wireless means, as well as the communication to the public of their broadcasts if such communication is made in places accessible to the public against payment of an entrance fee”.

An Austrian collecting society, which managed the rights of various television broadcasters, issued proceedings against an Austrian hotel group, which provided TV sets in its rooms thereby allowing programmes in which the broadcasters had rights to be received and viewed by its paying guests. The collecting society argued that the hotel was communicating to the public programmes of the television broadcasters it represented in a place accessible to the public against payment of an entrance fee within the meaning of Article 8(3). In the collecting society’s view, that activity was subject to the exclusive right of the television broadcasters to authorise or prohibit the rebroadcasting of their broadcasts, and that the hotel company should therefore pay the appropriate fees.

The Austrian court asked the CJEU whether the collecting society’s argument was correct in law.

The CJEU noted that it has previously held that installing television sets in hotel rooms and providing a television signal via them constitutes communication to the public within the meaning of Article 3(1) of the Copyright Directive (2001/29/EC) and Article 8(2) of the Rental and Lending Right Directive (see Case C-306/05 SGAE v Rafael Hoteles SA and Case C-162/10 Phonographic Performance (Ireland)).

It followed, the CJEU said, that the provision of a television or radio signal by means of television sets installed in hotel rooms was also “communication to the public” within the meaning of Article 8(3). However, unlike the exclusive right of performers and the right of phonogram producers provided for in Articles 8(1) and (2), the exclusive right of broadcasters provided for in Article 8(3) is limited to cases of communication to the public in places accessible to the public against payment of an entrance fee.

The CJEU said that, as the Advocate General had said in his Opinion, the price of a hotel room was not, like the price paid in a restaurant, an entrance fee specifically requested in return for a communication to the public of a TV or radio broadcast. The price of a hotel room is in fact consideration for, principally, accommodation, to which, depending on the type of hotel, certain additional services are added, such as the communication of TV and radio broadcasts via TV sets in rooms, and which are normally included in the price of the overnight stay.

Therefore, although the distribution of a signal by means of TV and radio sets installed in hotel rooms constitutes an additional service, which has an influence on the hotel’s standing and, therefore, on the price of rooms, in the context of communication to the public within the meaning of Article 3(1) of the Copyright Directive and of Article 8(2) of the Rental and Lending Right Directive, that additional service cannot be considered to be offered in a place accessible to the public against payment of an entrance fee within the meaning of Article 8(3) of the Rental and Lending Right Directive.

Consequently, the CJEU said, the communication to the public of TV and radio broadcasts by means of TV and radio sets installed in hotel rooms does not fall within the scope of the exclusive right of broadcasting organisations provided for in Article 8(3) of the Rental and Lending Right Directive. (Case C-641/15 Verwertungsgesellschaft Rundfunk GmbH v Hettegger Hotel Edelweiss GmbH (16 February 2017) — to access the judgment in full, go to the curia search form, type in the case number and follow the link).