June 7, 2016

The defendant, Reha Training Gesellschaft für Sport- und Unfallrehabilitation mbH, operated a rehabilitation centre in Germany offering post-operative treatment for accident victims.  The centre had installed TV sets in three of its rooms for the benefit of its patients.

The claimant, Gesellschaft für musikalische Aufführungs- und mechanische Vervielfältigungsrechte (GEMA), responsible for the collective management of music copyright in Germany, claimed that Reha Training’s actions constituted an act of “communication to the public” of works belonging to the repertoire it managed.  Reha Training refused to pay fees to GEMA, which therefore issued proceedings in Cologne, Germany, claiming damages calculated on the basis of the rates in force for the period June 2012 to June 2013.

At first instance, the Cologne court found in favour of GEMA.  Reha Training appealed the decision.  Given the decision of the Court of Justice of the European Union in Case C-135/10 Società Consortile Fonografici v Marco Del Corso, in which the CJEU had found that a dentist who broadcast sound recordings free of charge in his private dental practice was not undertaking a “communication to the public”, the Cologne appeal court referred four questions to the CJEU concerning the interpretation of “communication to the public” in Article 3(1) of the Copyright Directive and in Article 8(2) of the Rental  and Lending Right Directive.

The CJEU found that, given the requirements of unity and coherence of the European Union legal order, the concepts used by both Directives must have the same meaning, unless the EU legislature has, in a specific legislative context, expressed a different intention.

It was true, the CJEU said, that the concept of “communication to the public” was used in different contexts under each Directive and pursued objectives, which, while similar, were in part divergent.  Article 3(1) of the Copyright Directive grants authors a right that is preventative in nature to prohibit users communicating to the public the author’s work without permission, while Article 8(2) of the Rental and Lending Right Directive grants performers and producers of sound recordings a right that is compensatory in nature and allows the collection of royalties once the sound recording has been communicated to the public.

However, there was no evidence that the EU legislature wished to confer on the concept of “communication to the public” a different meaning in the respective contexts of each Directive.  As the Advocate General had noted, the different nature of the rights protected under each Directive cannot hide the fact that, according to the wording of each Directive, those rights have the same trigger, namely the communication to the public of protected works.  Therefore, when applying both Article 3(1) of the Copyright Directive and Article 8(2) of the Rental and Lending Right Directive to the facts, the concept of “communication to the public” had to be given the same meaning and be assessed in accordance with the same criteria.

Having set out a summary of the criteria to be applied according to its own case law, the CJEU noted that it had already held that the operators of a café-restaurant, a hotel or a spa establishment carried out an act of communication where they intentionally broadcast protected works to their clientele by intentionally distributing a signal by means of television or radio sets that they had installed in their establishments.  Those situations were “fully comparable”, the CJEU said, with this particular case.

Further, according to the evidence, the patients of a rehabilitation centre were clearly “persons in general” and a group of them was not “too small or insignificant”, as they enjoyed works broadcast at the same time in several different places within the establishment.  Therefore, they constituted a “public” within the meaning of both Directives.

In addition, this “public” could not, in principle, enjoy the works broadcast without the targeted intervention of the operator of that centre.  This was different to the situation in SCF where the patients were “caught by chance” and not targeted.

Further, in the CJEU’s view, the patients were clearly not taken into account when the original authorisation for the work to be made available was given, meaning that they constituted a “new public”.

As for the profit-making nature of the “communication”, the CJEU found that given that the broadcast of TV programmes in the centre was intended to create a diversion for the patients during their treatment or in the waiting room, the centre was supplying additional services, which, while not having any medical benefit, had an impact on its standing and attractiveness, thereby giving it a competitive advantage.  This was different to the factual scenario in SCF, the CJEU said.  Therefore, Reha Training’s broadcasting activities had a profit-making nature, which could be taken into account when determining the amount of remuneration due, where appropriate, for such a broadcast.

The CJEU found, therefore, that Reha Training was indeed carrying out an act of “communication to the public” within the meaning of both Directives.  (Case C 117/15 Reha Training Gesellschaft für Sport- und Unfallrehabilitation mbH v Gesellschaft für musikalische Aufführungs- und mechanische Vervielfältigungsrechte (GEMA) 31 May 2016 (unreported) — to access the judgment in full, go to the curia search form, type in the case number and follow the link).