The matter at hand
Rundfunk, a collective management organisation representing the interests of broadcasting organisations established in Austria, claimed that Hotel Edelweiss, by communicating television and radio broadcasts by means of TV sets installed in its hotel rooms, performed an act of communication to the public within the meaning of Article 8(3) 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.
This Article provides 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.
According to Rundfunk, the price of a hotel room must be regarded as an entrance fee, since the offer of a television in a hotel has an influence on that price. Hotel Edelweiss contested this claim, arguing that Article 8(3) applies only to an entrance fee demanded specifically for a communication and therefore not to the price that a hotel guest primarily pays in consideration for the overnight stay.
In those circumstances, the Commercial Court of Vienna referred the matter to the ECJ, asking, in essence, whether the criteria of Article 8(3) 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 are met where the hotel operator charges a fee per room per night which also includes use of the TV set and the channels to which access is thereby provided.
The judgment of the ECJ
The ECJ recalls, with reference to SCT (C‑135/10), that concepts appearing in 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 interpreted in the light of the Rome Convention “in such a way that they are compatible with the equivalent concepts contained in that convention, taking account also of the context in which those concepts are found and the purpose of the relevant provisions of the convention” (paragraph 21). In this case, the scope of the right of communication to the public laid down in Article 8(3) is equivalent to that of the right provided for in Article 13(d) of the Rome Convention (paragraph 22).
According to the Guide to the Rome Convention, the condition of an entrance fee “presupposes a payment specifically requested in return for a communication to the public of a TV broadcast” and “payment for a meal or drinks in a restaurant or in a bar where TV broadcasts are aired is not to be regarded as a payment of an entrance fee within the meaning of that provision” (paragraph 23). Likewise “the price of a hotel room is not (…) an entrance fee specifically requested in return for a communication to the public of a TV or radio broadcast, but constitutes the consideration for, principally, the accommodation service” (paragraph 24).
On this basis, the ECJ concludes that “although the distribution of a signal by means of TV and radio sets installed in hotel rooms constitutes an additional service which has an influence on the hotel’s standing and, therefore, on the price of rooms (…) it cannot be considered that that additional service is offered in a place accessible to the public against payment of an entrance fee within the meaning of Article 8(3) 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]” (paragraph 25).