CJEU: Televisions in hotel rooms and fitness areas and signal transmitted via own cable distribution network constitute and communication to the public

Respondent is the operator of a hotel in Munich. On November 17th in 2019, an episode of the television series "Wickie und die starken Männer" broadcasted by a public television channel was shown on television sets in the rooms and the fitness area of her hotel. The television signal was simultaneously and unchanged transmitted to the devices via the hotel's own cable distribution network. Respondent has exhaustively arranged the transmission via cable in license agreements concluded with the German collective management organizations. Applicant, an independent collective management organization for profit under German law, demands that respondent cease the communication to the public of this episode, to the extent that the broadcast signal is transmitted to the television sets by means of coaxial or data cables. Respondent argues that she may make the freely receivable broadcasts of the public television channel available to her guests via the television sets in the hotel rooms because she has a license for transmission via cable. However, Applicant believes that Respondent infringes copyright with respect to the television sets placed in the hotel rooms and the fitness area because she undermines the right of communication to the public by transmitting the broadcast signal via the hotel's own cable distribution system.

Case  C-723/22 Citadines v MPLC
 

The referring court indicates a tendency to interpret Article 3(1) of the InfoSoc Directive to mean that the mere provision of receiving devices does not constitute a communication to the public, but that nonetheless, this right is undermined by previous transmission of the signal to the receiving devices via the hotel's own cable distribution system. The concept of "communication to the public" connects two cumulative elements, namely an "act consisting of a communication" of a work and the "communication to a public". In this case, it is doubtful whether it can be inferred from the transmission via cable within the hotel by the user, to which he is entitled under a license, that he has consciously performed an "act consisting of a communication" when his conduct otherwise only consists of the provision of receiving devices, which does not constitute infringement. Although it is stated in the context of Article 3(1) of Directive 2001/29 that the legality of the source in the case of an act consisting of a communication is in principle irrelevant, this seems problematic because two aspects of the communication to the public in the context of full harmonization of exploitation rights in the directive, which also establishes the binding upper limit of the level of protection, would be separately exploited. According to the referring court, it is established in this case that it concerns a communication to the public, due to the rapidly succeeding new public in a hotel. The referring court requests interpretation of Article 3(1) of Directive 2001/29 with the preliminary question because it wonders whether there is an "act consisting of a communication" when the user of a protected work has acquired a license under which he has a right to retransmit via cable in accordance with national law, and his conduct otherwise is limited to the provision of receiving devices.

Preliminary question:

Must Article 3(1) of Directive [2001/29] be interpreted as precluding a national provision or practice according to which the provision of physical facilities for enabling or making a communication – such as television sets in hotel rooms or hotel fitness rooms – is regarded as communication to the public when, while the transmission signal, in addition, is retransmitted to the physical facilities via the hotel’s own cable distribution system, that cable retransmission takes place lawfully on the basis of a licence acquired by the hotel?

 

CJEU answer:

Article 3(1) of [InfoSoc-Directive] must be interpreted as meaning that the provision of television sets installed in the rooms or in the fitness area of a hotel, where a signal is also retransmitted to those sets by means of that hotel’s own cable distribution network, constitutes a ‘communication to the public’, within the meaning of that provision.

IPPT version will follow anytime soon

ECLI:EU:C:2024:289 and case C-723/22