'Communication to the public' to be interpreted with same assessment criteria for different Directives
Last week, Advocate General Yves Bot issued his Opinion in the Reha Training case on the scope and application of the term 'communication to the public'.
Background
GEMA, who deal with the collective management of music copyright in Germany, brought proceedings to claim royalty payments from Reha Training after Reha refused to pay a licence fee to show television programmes in their rehabilitation centre for patients undergoing treatment. The Landgericht Köln (Regional Court, Cologne) referred the following questions to the Court of Justice of the European Union (CJEU):
- Does the making available of TV broadcasts by means of TV sets on the premises of a rehabilitation centre fall within the scope of Article 3(1) of the InfoSoc Directive (2001/29/EC) and Article 8(2) of the Rental and Lending Rights Directive (2006/115/EC)? and
- Should the concept of ‘communication to the public’ for the purposes of those two provisions be given a uniform interpretation?
Decision
Crucially Advocate General Bot opined that "communication to the public" in Article 3(1) of the InfoSoc Directive and Article 8(2) of the Rental Directive must be defined in accordance with the same criteria. This is to respect the "unity and coherence" of the EU legal order because despite the different nature of the rights, both Directives have the same trigger: the communication to the public of protected works.
The Court identified four assessment criteria for the concept of 'communication to the public':
- the existence of an ‘act of communication’ for which the role of the user is indispensable;
- the communication of a protected work to a ‘public’;
- the ‘new’ character of that public (i.e. a public that was not taken into account by the copyright holders at the time the initial communication was authorised); and
- the ‘profit-making’ nature of the communication. The AG did not think that this is an essential element and in any case has a very broad interpretation. In this situation it could be met by making the patients' waiting time seem shorter or increasing the establishment's standing and attractiveness, thereby giving it a competitive advantage.
The AG noted that the CJEU has been asked on several occasions to review the concept of 'communication to the public' and has given it a broad interpretation. Operators of a public house, a hotel or a spa establishment have been found to perform an act of communication when they deliberately transmit protected works to their clients by television and radio sets in their establishments.
AG Bot did not think that the ruling in Società Consortile Fonografici (SCF) v Marco Del Corso (Case C-135/10) should apply in this case. That case had held that: (i) the broadcasting of programmes in a dental practice was not profit-making where patient access to the broadcasts was merely passive; and (ii) the patients in the surgery did not amount to a "public".
When considering the concept of communication, AG Bot put the emphasis on the user who "must act intentionally". The act is made where the user intervenes with full knowledge of the consequences to give access to protected work to its clients. The concept should be construed broadly to cover any transmission "irrespective of the technical means or process used".
On these facts, AG Bot concluded that both Directives may be applied and the showing of TV programmes in the rehab centre did constitute communication to the public.
Comment
It seems sensible to apply the same criteria in both Directives. The two Directives have subtly different emphases: one to ensure authors have the exclusive right to communicate works to the public and the other to provide equitable remuneration for the broadcast of works for communication to the public. However, it is reassuring that the AG's view is that due to the overall purpose of both Directives, and each using the same concept,, the scope and application should be the same.
The opinion also reinforces the line of case law which has interpreted the concept of "communication to the public" broadly. On this basis, any communication beyond the use by the original purchaser of the work and their immediate friends and family, would constitute another communication to the public.
Some commentators have suggested that AG Bot's analysis of the concept of communication and the process of transmission is contrary to that expressed by the CJEU in Svensson (see our discussion on that case here). This is because in Svensson the court felt it was sufficient for the work to be made available "irrespective of whether [the public] avail themselves of that opportunity" whereas the AG here considered that the user must act intentionally.
We wait to see if the CJEU follows the AG opinion and any impact this may have on the approach to linking and the application of the concept of communication. However, businesses showing works to visitors, even a relatively small section of the public, should bear this in mind and ensure that they have the correct licences in place.