Opinion AG: Operator of a residential home for the elderly, does not make a communication to the public when it simultaneously retransmits Radio and TV to their residents' rooms

GEMA argues that the operator of a residential and nursing home must obtain a licence for the transmission of radio and television programmes to the residents. The Advocate General concludes that the [InfoSoc Directive] must be interpreted to mean that the operator of a nursing home does not effect a communication to the public where, by means of its cable network, it simultaneously, unaltered, and in full retransmits broadcasting programmes received via a satellite reception system to the radio and television outlets installed in the residents’ rooms.
 

Case C‑127/24 GEMA v VHC 2 Seniorenresidenz

The applicant is GEMA, an association responsible for the administration of copyright and related rights of composers, lyricists, and music publishers. The respondent is the operator of a residential and nursing home. In this facility, radio and television broadcasts are received via a proprietary satellite reception system, which the residents are able to use. GEMA contends that the respondent must obtain a licence for the transmission of radio and television programs to the residents and seeks an injunction prohibiting the communication of musical works without GEMA’s authorization.

Article 3 of Directive 2001/29 governs the right of communication of works to the public. The matter at hand concerns such a communication of works, but the question arises whether this communication is directed at a “new public” within the meaning of the Directive. The relevant public consists of the residents of the home, who reside there on a long-term basis. The referring court further inquires whether it is relevant for this assessment that the facility is operated on a commercial basis. The court also seeks clarification as to whether it makes a difference if the retransmission of radio and television occurs via the open internet.

Preliminary questions:

(1)      Do residents of a commercially operated retirement home who have television and radio connections in their rooms, to which the operator of the retirement home simultaneously retransmits via its cable network, unaltered and unabridged, broadcast programmes received by means of its own satellite receiving system, constitute an “indeterminate number of potential recipients” for the purposes of the definition of “communication to the public” under Article 3(1) of Directive [2001/29]?

 

(2)      Is the definition used to date by the Court, according to which “communication to the public” within the meaning of Article 3(1) of Directive [2001/29] requires the protected work to be communicated using technical means different from those previously used or, failing that, to a [new public], that is to say, a public that was not already taken into account by the copyright holders when they authorised the original communication of their work to the public, still generally applicable, or is the technical means used only relevant in cases where content initially received terrestrially or via satellite or cable is retransmitted over the internet?

 

(3)      Is there a “new public” for the purposes of the definition of “communication to the public” under Article 3(1) of Directive [2001/29] when the operator of a retirement home, for profit-making purposes, simultaneously retransmits via its cable network, unaltered and unabridged, broadcast programmes received by means of its own satellite receiving system to the television and radio connections in the rooms of the residents of the retirement home? For the purposes of this assessment, is it relevant whether or not residents are able to receive the television and radio programmes in their rooms terrestrially, irrespective of the cable transmission? Furthermore, for the purposes of this assessment, is it relevant whether the right holders already receive remuneration for consenting to the original broadcast?

Opinion AG:

Article 3(1) [InfoSoc Directive] must be interpreted as meaning that the operator of a retirement home does not make a communication to the public when it simultaneously retransmits via its cable network, unaltered and unabridged, to the television and radio connections installed in the residents’ rooms, broadcast programmes received by a satellite reception system.

IPPT version will follow anytime soon
ECLI:EU:C:2025:654 and case C-127/24