October 31, 2016

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 Court of Justice of the European Union whether the collecting society was correct in its argument.

Advocate General Szpunar noted that the CJEU 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.

However, he said, the object and scope of protection in those provisions were different from those in Article 8(3).

Whilst it was true that the provision of a television or radio signal by means of television sets installed in hotel rooms had to be regarded as “communication to the public” within the meaning of Article 8(3), the phrase “places accessible to the public against payment of an entrance fee”, also had to be considered.

In the Advocate General’s view, the fee paid for a room in a hotel was “not a fee for the possibility of viewing television broadcasts there, but for accommodation”.  Making television broadcasts available was, “merely an additional service which a customer expects, in the same way as running water, drinks and an internet connection”.

Therefore, the Advocate General said, as in catering establishments and other places that can be fitted with television sets, but where fees levied are not in connection with the possibility of viewing television broadcasts but in connection with other services provided there, hotel rooms were not places accessible to the public against payment of an entrance fee within the meaning of Article 13(d) of the Rome Convention (the provision on which Article 8(3) was based).  Therefore, communication to the public in those rooms of the broadcasters’ programmes was not covered by the exclusive of right of the broadcasters.

When drafting Article 8(3), the legislature had not, the Advocate General said, intended to extend that protection beyond the scope set out in the Rome Convention.  Therefore, the term “places accessible to the public against payment of an entrance fee” did not cover hotel rooms.  Further, nothing had changed since the signing of the Convention such as to justify an interpretation that diverged entirely from the objectives and intention of the signatories to the Convention.

In conclusion, therefore, neither the drafting history nor the objective of Article 8(3), nor any other aspects, militated in favour of an interpretation of the term “places accessible to the public against payment of an entrance fee” that would cover hotel rooms.  (Case C 641/15 Verwertungsgesellschaft Rundfunk GmbH v Hettegger Hotel Edelweiss GmbH (Opinion of Advocate General) 25 October 2016 — to access the Opinion, go to the curia search form, type in the case number and follow the link).