Communication to new public in spa establishments - exception for spa establisments allowed
27-04-2014 Print this page
“Communication” to the public by providing access to works via television and radio devices in rooms of spa establishment.
"25. First of all, the concept of ‘communication’ must be construed as referring to any transmission of the protected works, irrespective of the technical means or process used (Joined Cases C‑403/08 and C‑429/08 Football Association Premier League and Others [2011] ECR I‑9083, paragraph 193).
"32. The spa establishment is the organisation which intervenes, in full knowledge of the consequences of its action, to give access to the protected work to its patients. In the absence of that intervention, its patients would not, in principle, be able to enjoy the broadcast work (see, to that effect, SGAE, paragraphs 41 and 42)."
Exemption for communications to the public in spa establishment violates Directive 2001/29.
"41. In view of the foregoing, the answer to the first question is that Article 3(1) of Directive 2001/29 must be interpreted as precluding national legislation which excludes the right of authors to authorise or prohibit the communication of their works, by a spa establishment which is a business, through the intentional distribution of a signal by means of television or radio sets in the bedrooms of the establishment’s patients. Article 5(2)(e), (3)(b) and (5) of that directive is not such as to affect that interpretation."
No direct effect Directive 2001/29 in the relation between management organization and individuals, but national court required to interpret legislation in a manner consistent with the objective of the directive.
"48. In view of the foregoing, the answer to the second question is that Article 3(1) of Directive 2001/29 must be interpreted as meaning that it cannot be relied on by a collecting society in a dispute between individuals for the purpose of setting aside national legislation contrary to that provision. However, the national court hearing such a case is required to interpret that legislation, so far as possible, in the light of the wording and purpose of the directive in order to achieve an outcome consistent with the objective pursued by the directive."
Collective society must be regarded as providing a service to the users of protected works (spa establishment).
"63. It follows that a collecting society, such as OSA, must be regarded as providing a ‘service’ within the meaning of both Article 4(1) of Directive 2006/123 and Article 57 TFEU to the users of protected works, such as the spa establishment at issue in the main proceedings."
Granting collective management of copyright in one Member State to one single collecting society not in violation of EU law.
"91. In the light of all the foregoing, the answer to the third question is that Article 16 of Directive 2006/123, and Articles 56 TFEU and 102 TFEU must be interpreted as not precluding national legislation, such as that at issue in the main proceedings, which reserves the exercise of collective management of copyright in respect of certain protected works in the territory of the Member State concerned to a single collecting society and thereby prevents users of such works, such as the spa establishment in the main proceedings, from benefiting from the services provided by another collecting society established in another Member State."
Indication of abuse of dominant position if collecting society imposes fees which are appreciably higher than those charged in other Member States, or imposes prices which are excessive in relation to the economic value of the service provided.
"92. Article 102 TFEU must be interpreted as meaning that the imposition by the collecting society of fees for its services which are appreciably higher than those charged in other Member States (a comparison of the fee levels having been made on a consistent basis) or the imposition of a price which is excessive in relation to the economic value of the service provided are indicative of an abuse of a dominant position."
C‑351/12 - ECLI:EU:C:2014:110
