Uniform interpretation of “Communication to the public” in article 3(1) Directive 2001/29/EC and article 8 Directive 2006/115/EC:
"It follows from the foregoing 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 phonogram producers, both Article 3(1) of Directive 2001/29 and Article 8(2) of Directive 2006/115 must be applied, whilst giving the concept of ‘communication to the public’ in both those provisions the same meaning."
Act of communication to the public in case of intentionally transmitting copyright protected works by an operator of a rehabilitation centre to patients via television sets that are placed in several areas in this centre:
"Therefore, it must be held that such an operator carries out an act of communication.
In the second place, as regards the body of patients of a rehabilitation centre, such as that at issue in the main proceedings, it must be observed, first of all, that it is apparent from the documents submitted to the Court that they are persons in general.
Next, 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.
In those circumstances, it must be held that the body of patients of a rehabilitation centre, such as that at issue in the main proceedings, constitute a ‘public’, within the meaning of Article 3(1) of Directive 2001/29 and Article 8(2) of Directive 2006/115.
Finally, 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."
The presence of a profit-making nature is relevant for determining the amount of remuneration.
"In the third place, as regards the profit-making nature of such a communication, it must be stated, as the Advocate General observed in point 71 of his Opinion, that, in the present case, the broadcasting of television programmes on television sets, in so far as it is intended to create a diversion for the patients of a rehabilitation centre, such as that at issue in the main proceedings, during their treatment or in the waiting time, 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.
It follows that, in a situation such as that at issue in the main proceedings, the broadcasting of television programmes by the operator of a rehabilitation centre, such as Reha Training, has a profit-making nature, capable of being taken into account in order to determine the amount of remuneration due, where appropriate, for such a broadcast."
IPPT20160531, CJEU, Reha Training v Gema
C-117/15 - ECLI:EU:C:2016:379
