The matter at hand

Reha Training operates a rehabilitation centre whose premises include two waiting rooms and a training room in which patients could watch television programmes on television sets installed there.

Reha Training, however, never requested GEMA, the company entrusted with the collective management of copyright in Germany, for permission to broadcast those programmes. GEMA subsequently brought proceedings against Reha Training before the courts in Germany, claiming that the broadcasting by Reha Training constitutes a communication to the public.

In these circumstances, the referring asked the ECJ, in essence, whether the broadcasting by Reha Training constitutes an act of communication to the public within the meaning of Article 3(1) of the Copyright DirectiveDirective 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society and/or Article 8(2) of the Rental and Lending Rights DirectiveDirective 2006/115/EC of the European Parliament and of the Council of 12 December 2006 on rental rights and lending right and on certain rights related to copyright in the field of intellectual property.

The judgment of the ECJ

The ECJ first of all rules that “in a case such as that in the main proceedings, concerning the broadcast of television programmes which allegedly affects not only copyright but also, inter alia, the rights of performers or phonogramme producers, both Article 3(1) of [the Copyright DirectiveDirective 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society] and Article 8(2) of [the Rental and Lending Rights DirectiveDirective 2006/115/EC of the European Parliament and of the Council of 12 December 2006 on rental rights and lending right and on certain rights related to copyright in the field of intellectual property] must be applied, whilst giving the concept of ‘communication to the public’ in both those provisions the same meaning” (paragraph 33).

As to the interpretation of that concept, the ECJ recalls, with reference to its judgments in Phonographic Performance (Ireland) (C‑162/10), ITV Broadcasting and Others (C‑607/11) and SBS Belgium (C‑325/14), that “account has to be taken of several complementary criteria, which are not autonomous and are interdependent. Since those criteria may, in different situations, be present to widely varying degrees, they must be applied both individually and in their interaction with one another” (paragraph 35).

In that connection, the ECJ notes, again with reference to the case law cited above, that the concept of ‘communication to the public’:

Regarding the first criterion of an ‘act of communication’, the ECJ holds that this criterion refers to “any transmission of the protected works, irrespective of the technical means or process used” (paragraph 38). The ECJ notes that it has already held that “the operators of a café-restaurant, a hotel or a spa establishment carry 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 which they have installed in their establishment” (paragraph 54). According to the ECJ “[t]hose situations are fully comparable with that at issue in the main proceedings in which, as is apparent from the order for reference, the operator of a rehabilitation centre intentionally broadcasts protected works to its patients by means of television sets installed in several places in that establishment” (paragraph 55). Consequently, the first criterion has been met.

Secondly, as regards the criterion of ‘a public’, the ECJ recalls, with reference to its judgments in SGAE (C-306/05) and SCF (C-135/10) that:

(i). this criterion refers to an “indeterminate number of potential recipients”, meaning “‘persons in general’, that is, not restricted to specific individuals belonging to a private group” (paragraph 42);

(ii). this criterion implies, moreover, “a fairly large number of persons”, indicating that “the concept of ‘public’ encompasses a ‘certain de minimis threshold’, which excludes from the concept groups of persons which are too small, or insignificant” (paragraph 43);

(iii). in order to determine the size of that audience, “account must be taken of the cumulative effects of making works available to potential audiences”, in which respect it is “relevant, inter alia, to know how many persons have access to the same work at the same time and how many of them have access to it in succession” (paragraph 44).

The ECJ rules that this criterion has been met as well, considering that “as regards the body of patients of a rehabilitation centre (…) it must be observed, first of all, that it is apparent from the documents submitted to the Court that they are persons in general” (paragraph 57) and that “the circle of persons constituted by those patients is not ‘too small or insignificant’, it being understood, in particular, that those patients may enjoy works broadcast at the same time in several places in the establishment” (paragraph 58).

Thirdly, as to the criterion of a ‘new public’, the ECJ rules that “the patients of such a rehabilitation centre cannot, in principle, enjoy works broadcast without the targeted intervention of the operator of that centre. Furthermore, since the origin of the dispute in the main proceedings concerns the payment of royalties for copyright and related rights for the making available of protected works in that centre, it must be observed that those patients were clearly not taken into account when the original authorisation for the work to be made available was given” (paragraph 60). Consequently, the third criterion of a ‘new public’ has been met as well.

Although the above considerations are already sufficient for the ECJ to conclude that there is a communication to the public, the ECJ notes that in this case the communication also has a profit-making nature, because the broadcasting of television programmes on television sets in the rehabilitation centre “is intended to create a diversion for the patients” and “constitutes the supply of additional services which, while not having any medical benefit, does have an impact on the establishment’s standing and attractiveness, thereby giving it a competitive advantage” (paragraph 63).