08 Jul The Court of Justice clarifies the concept of “communication to the public” of copyright works in rental apartments
Legislation framework
One of the exclusive rights of authors of copyright works is that of public communication of their works. The WIPO Copyright Treaty (WCT) provides in its Article 8 that “authors of literary and artistic works shall enjoy the exclusive right of authorising any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access these works from a place and at a time individually chosen by them”.
In its judgment of 20/06/2024, C-135/23, GEMA, ECLI:EU:C:2024:526, the Court of Justice of the European Union (CJUE) clarifies whether the provision in rental apartments of television sets equipped with an indoor antenna enabling signals to be picked up and broadcasts to be made is an act of ‘communication to the public’.
In the European Union, Directive 2001/29/EC of copyright and related rights in the information society contains substantially the same provision as Article 8 WCT in its Article 3(1), which states that “Member States shall provide authors with the exclusive right to authorise or prohibit any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them”.
Under that provision, authors have a right which is preventive in nature and which enables them to intervene between possible users of their work and the communication to the public which such users might contemplate making, in order to prohibit such communication (CJUE judgments of 31/05/2016, Reha Training, C‑117/15, EU:C:2016:379, §30, and of 20/04/2023, Blue Air Aviation, C‑775/21 and C‑826/21, EU:C:2023:307, §44).
Directive 2001/29/EC does not define the concept of ‘communication to the public’ but clarifies (in recital 27) that “[t]he mere provision of physical facilities for enabling or making a communication does not in itself amount to communication within the meaning of this Directive” in line with the agreed statements concerning Article 8 WCT.
Judgment GEMA
The CJUE judgment answers a request for a preliminary ruling from the Amtsgericht Potsdam (Local Court, Potsdam, Germany) made in the framework of a lawsuit between GEMA, a collective management organisation that handles music copyright, and GL, an operator of a building of rental apartments, for copyright infringement on the ground that GL provides, in those apartments, television sets equipped with an indoor antenna enabling signals to be picked up and broadcasts to be made in those apartments, in particular of music.
The Amtsgericht Potsdam had asked the CJUE whether the-above cited Article 3(1) of Directive 2001/29 must be interpreted as meaning that the concept of ‘communication to the public’ covers that provision of television sets in rental apartments.
Concept of “communication to the public”
In its judgment, the CJEU reviews its case law on the concept of ‘communication to the public’ of copyright works. In particular, it reminds that the said concept includes two cumulative criteria, namely an act of communication of a work and the communication of that work to a public, and requires an individual assessment, in which account has to be taken of several complementary criteria, like the indispensable role played by the user and the deliberate nature of his intervention (§21-23). That user makes an ‘act of communication’ when he intervenes, in full knowledge of the consequences of his action, to give his customers access to a protected work, particularly where, in the absence of that intervention, those customers would not, in principle, be able to enjoy the broadcast work (§23).
In the CJEU’s view, it is the indispensable role of the user to give his customers access to protected works and the deliberate nature of his intervention, in particular if that intervention is of a profit-making nature, which makes it possible to distinguish between ‘communication to the public’ and ‘mere provision of physical facilities’ (§26).
The CJEU also reminds that, as regards a public house, a hotel, a spa establishment and a rehabilitation centre, their operators perform an act of communication when they deliberately transmit protected works to their clientele, by intentionally distributing a signal through television or radio sets which they have installed in their establishment (§29)
Communication to the public in rented flats
Assessing the issue at stake, to the CJEU, it is clear that the operator of an apartment building, by installing in those apartments television sets and indoor antennae that, without further intervention, pick up signals and enable broadcasts to be made, in particular of music, in those apartments, deliberately makes an intervention in order to give its clientele access to those broadcasts, within rented apartments and during the rental period, irrespective of whether the clientele avails itself of that opportunity (§33).
The CJEU considers that it is an additional service performed with the aim of obtaining some benefit – it has an influence, in particular, on the price of rent and the occupancy of the apartments, which establishes that the communication is of a profit-making nature (§34-35).
On the other hand, it finds that it is irrelevant that the television sets are connected to an ‘indoor’ antenna rather than a ‘central’ antenna, as such a distinction between central and indoor antennae is not consistent with the principle of technological neutrality (§36-37).
To be categorised as a ‘communication to the public’, the protected works must also in fact be communicated to a public, that is, to an indeterminate number of potential recipients and implies, moreover, a fairly large number of people (§38). The concept of ‘public’ involves a certain de minimis threshold, which excludes from that concept a group of persons concerned that is too small or insignificant. To determine that number, account should be taken, in particular, of the number of persons able to access the work at the same time and in succession (§39).
Concurring with the Advocate General, the CJUE holds that, if the apartments are let on a short-term basis, e.g. as tourist accommodation, their tenants should be classified as a ‘public’, since together they constitute, like guests in a hotel, an indeterminate number of potential recipients (§42).
Besides, to be categorised as a ‘communication to the public’, a protected work must also be communicated using specific technical means, different from those previously used or, failing that, to a ‘new public’, that is, to a public that was not already considered by the copyright holder when it authorised the initial communication of its work to the public (§43).
Relying on the opinion of the Advocate General, the CJEU finds that the tenants of apartments in a building that are let on a short-term basis, in particular as tourist accommodation, are capable of constituting such a ‘new’ public, since those persons, although within the catchment area of that broadcast, could not, without the intervention of the operator of that building, involving the installation of television sets equipped with indoor antennae in those apartments, enjoy the broadcast works (§44). By contrast, if the apartments are let to tenants who establish their residence there, those tenants cannot be regarded as a ‘new public’ (§45).
Consequently, the CJEU rules that the concept of ‘communication to the public’ covers the deliberate provision, by the operator of a rented apartment building, of television sets equipped with an indoor antenna that, without further intervention, pick up signals and enable broadcasts to be made, provided that the tenants of those apartments can be regarded as a ‘new public’ (§46).
Comment
It follows from the judgment that when an operator of rental apartments deliberately provides to his tenants televisions equipped with an antenna which, without further intervention, pick up signals and allow the broadcasting of copyrighted works, he performs an act of ‘communication to the public’ of works if they are tourist apartments (let on a short-term basis) because this type of rental may affect the number of persons who can successively access the works. Consequently, operators of tourist apartments equipped with televisions connected to antennas should pay a license fee to the relevant copyright collecting society.
For more information, you can consult the court’s judgement at the following link.
Author: Emil Edissonov, lawyer and partner of Curell Suñol, SLP.
Photo by Howard Bouchevereau on Unsplash.com