19 June, 2016
Copyright – communication to the public
— Reha Training Gesellschaft für Sport- und Unfallrehabilitation mbH v Gesellschaft für musikalische Aufführungs- und mechanische Vervielfältigungsrechte (GEMA), Case C-117/15, 23 February 2016
Facts
This case is a reference for a preliminary ruling from the Regional Court in Cologne, Germany (“Referring Court”) regarding, among other things, the meaning of ‘communication to the public’ under Article 3(1) of Directive 2001/29/EC (the “Directive”).
The main proceedings concern a dispute between Reha Training Gesellschaft für Sport- und Unfallrehabilitation mbH (“Defendant”), which operates a rehabilitation centre, and Gesellschaft für musikalische Aufführungs- und mechanische Vervielfältigungsrechte (“Claimant”), a collective management organization for music copyright in Germany. The dispute concerns the television sets installed on the Defendant’s premises, which were used to broadcast television programmes to its patients in waiting rooms and training rooms. The Claimant alleged that this was a communication of the televised works to the public, and as such claimed for the payment of damages from June 2012 to June 2013, calculated based on the rates in force.
The local court in Cologne found that there was a communication to the public, and granted the Claimant’s application. The Defendant then appealed to the Referring Court, which was likewise of the view that there had been a communication to the public. However, the Referring Court felt that the judgment of the European Court of Justice (“ECJ”) in SCF (C-135/10, 15 March 2012), in which the Court distinguished a ‘private group’ of patients from ‘persons in general’, prevented it from giving a decision due to the similarities in the fact scenario in the present case and in the case of SCF – and in SCF, the ECJ had found that that there had not been a “communication to the public” of music.
In view of this, the Referring Court stayed its proceedings and referred the following questions, among others, to the ECJ for a preliminary ruling:
1. What were the criteria for deciding that there was a ‘communication to the public’ within the meaning of Article 3(1) of the Directive?
2. On the present facts, was there a ‘communication to the public’ pursuant to Article 3(1) of the Directive?
The present case is an opinion of an Advocate General, and is not a judgment of the ECJ. The opinions of Advocates General are advisory and not binding on the courts, although they tend to have an influence on the subsequent ruling of the courts.
Decision
Criteria for a ‘communication to the public’
The Advocate General opined that a communication to the public was comprised of two elements: an ‘act of communication’ and the communication of a work to a ‘public’.
With regard to an ‘act of communication’, the Advocate General emphasized that such a communication had to be made intentionally, giving customers access to protected works. Furthermore, a communication must be such that, without this communication, customers would not be able to enjoy the broadcast work. The ECJ has previously held that acts of communication would include the distribution by operators of broadcast works through television or radio sets in a public house, hotel or other such establishment where the operator deliberately transmitted protected works to their customers by intentionally distributing a signal through television or radio sets which they had installed in their establishments. On the parameters set out above, the Advocate General opined that the Defendant had intentionally given its patients access to the Claimant’s protected works, since the Defendant had installed television sets in its waiting rooms and training rooms via which it had intentionally transmitted a broadcast signal and thus made it possible for its patients to access television programmes.
With regard to what would constitute a ‘public’ – the Advocate General stated that a ‘public’ would refer to an indeterminate number of potential recipients, implying a fairly large number of persons.
The Referring Court had expressed doubt over whether the patients of a rehabilitation centre such as that operated by the Defendant could be classified as a ‘public’, with reference to the decision made by the ECJ in SCF. The Advocate General considered that the judgment in SCF should be limited to its specific facts. In the SCF case, the dentist’s patients formed a small and consistent group of persons, and thus could be distinguished from ‘persons in general’. This could not be established in the Defendant’s case, since the Defendant’s patients were an indeterminate and potentially large group which changed with each visit. Hence, the Defendant’s patients would constitute a ‘public’ in this situation.
A ‘new public’
The Advocate General also opined that a communication to a ‘new public’ was needed before a communication to the public under Article 3(1) of the Directive could occur. This criterion of a ‘new public’ was previously established by the ECJ in earlier judgments, and subsequently confirmed by several decisions. This criterion requires the broadcast of protected works to a public different from the public at which the original act of communication of the work is directed. When an author authorises a broadcast of his work, he considers, in principle, only the owners of the television sets who receive the signals within their own private or family circles. As such, once the owner of the television set permits an additional public outside of this private or family circle to see or hear the work, this would constitute an act of communication of a protected work to a new public.
Similarly, in the present case, the Defendant had caused the protected works to be seen and heard by its patients, which constituted an additional and indirect public not contemplated by the authors in their authorization of the broadcast.
The Advocate General additionally considered a fourth criterion – the ‘profit- making nature’ of a communication – and held that this was not an essential condition in proving a communication to the public. Nonetheless, the Advocate General considered that this requirement had been met, since the broadcast of the Claimant’s protected works did have a beneficial impact on the establishment’s standing and attractiveness.
Conclusion
In conclusion, the Advocate General opined that the Defendant had made a ‘communication to the public’ within the meaning of Article 3(1) of the Directive.
Comments
In Singapore, the copyright owner is granted a right to communicate their work to the public under the Copyright Act (the “Act”). In addition, the Act also grants copyright owners the right of performance of their works in public, or to cause their works to be seen or heard in public. These rights are distinct from the right to communicate their work to the public, and the Act distinguishes between these two types of rights.
The concept of a ‘new public’, which is discussed by the Advocate General in the present case, is novel to Singapore law. It remains to be seen if the local courts will adopt a similar standard to determine if a work has been communicated to the public.
A copy of the decision may be accessed at:
For further information, please contact:
Jeffrey Lim, Partner, WongPartnership
jeffrey.lim@wongpartnership.com
