To the ECJ, the broadcasting of TV programmes in a rehab facility constitutes a “communication to the public”

On 31 May 2016, by request of the Regional Court of Cologne, the European Court of Justice (ECJ) defined the correct interpretation to be given to the concept of “communication to the public” of copyright works (case C-117/15).

The issue arose in the context of proceedings started by GEMA, the company entrusted with the collective management of copyright in the musical sector in Germany, against a German rehab facility. To the company at issue the broadcasting of TV programmes including songs belonging to its repertoire, carried out through TVs set within some premises of the facility, constituted a “communication to the public”, both under article 3(1) of Directive 2001/29/EC on the harmonisation of copyright and related rights in the information society, with the effect that such a transmission would require its authorisation, and under article 8(2) of Directive 2006/115/EC on certain rights related to copyright in the field of IP, under which the facility at issue would have to pay an equitable remuneration to performers and producers of phonograms of such TV programmes.

The Regional Court of Cologne asked the ECJ for the correct interpretation to be given to the concept of “communication to the public” provided by the above-mentioned rules, given an earlier ECJ ruling in the same field (case C-135/10), which, in its view, would prevent the broadcasting of the TV programmes at issue from being qualified as a “communication to the public”. In that earlier case, in fact, the ECJ had excluded that the broadcast of phonograms in a dental practice could constitute a communication to the public, on the grounds that customers of the latter constituted a “private group” consisting of a small number of people; it had also pointed out the absence of a profit-making purpose in such a broadcasting, since customers generally choose their dental practices for their medical services, without taking into account additional services such as the broadcasting of phonograms.

In the decision under review, the ECJ first noted that a communication to the public should have two elements: an “act of communication” – i.e. any transmission of the protected works, irrespective of the technical means or process used – and a “public” to which such transmission is directed.

With reference to this second element, it stated that: i) “public” means an indeterminate and large number of potential recipients; ii) such public has to be “new”, i.e. “a public that was not taken into account by the authors of the protected works when they authorised their use by the communication to the original public”, the latter consisting of all the owners of reception equipment who, personally or within their own private or family circles, benefit from the broadcasted protected works; iii) the potential profit produced by the broadcasting – such as the economic benefit arising from the greater number of people attending the establishment in which broadcasting takes place – although it does not determine whether a transmission should be categorised as a communication to the public, it is however useful “for the purpose of determining any remuneration due in respect of that transmission”.

In light of the above, the ECJ stated that the transmission at issue – contrary to the dental practice case – constituted a communication to the public, on one hand, because the TV broadcasting, deliberately put in place by the facility, is definitely an act of communication; on the other because, as for customers of pubs, restaurants, hotels or spas – cases already defined by the ECJ’s decisions oriented in the same direction – the patients of a rehab facility are “persons in general”, not being a small number of people belonging to a private group, and, at the same time, they constitute a “new” group of people insofar as they were not taken into account by the holders of copyright on the TV programmes at issue when the latter had authorised their original broadcasting.

In the end, the European Judges noted the profit-making nature of such a communication, stating that the TV programme broadcasting put in place by the rehab facility to its patients “constitutes the supply of additional services which, while not having any medical benefit, does have an impact on the establishment’s standing and attractiveness, thereby giving it a competitive advantage”. Thus, such a profit-making nature will have to be considered by the Cologne Regional Court when determining the amount of remuneration the facility owes to GEMA.