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Communication and Making Available to the Public

  • 1 Società Consortile Fonografici (SCF) v Marco Del Corso, C-135/10, March 15, 2012 (ECJ) (communication to the public)

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    JUDGMENT OF THE COURT (Third Chamber)

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    15 March 2012 (*)

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    (Copyright and related rights in the information society — Direct applicability of the Rome Convention, the TRIPS Agreement and the WPPT in the European Union legal order — Directive 92/100/EC — Article 8(2) — Directive 2001/29/EC — Concept of ‘communication to the public’– Communication to the public of phonograms broadcast by radio in a dental practice)

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    In Case C‑135/10,

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    REFERENCE for a preliminary ruling under Article 267 TFEU, from the Corte d’appello di Torino (Italy), made by decision of 10 February 2010, received at the Court on 15 March 2010, in the proceedings

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    Società Consortile Fonografici (SCF)

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    v

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    Marco Del Corso,

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    intervening party:

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    Procuratore generale della Repubblica,

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    THE COURT (Third Chamber),

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    composed of K. Lenaerts, President of the Chamber, J. Malenovský (Rapporteur), E. Juhász, G. Arestis and T. von Danwitz, Judges,

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    Advocate General: V. Trstenjak,

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    Registrar: A. Impellizzeri, Administrator,

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    having regard to the written procedure and further to the hearing on 7 April 2011,

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    after considering the observations submitted on behalf of:

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    –        Società Consortile Fonografici (SCF), by L. Ubertazzi, F. Pocar and B. Ubertazzi, avvocati,

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    –        Marco Del Corso, by R. Longhin, A. Tigani Sava, L. Bontempi and V. Vaccaro, avvocati,

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    –        the Italian Government, by G. Palmieri, acting as Agent, and P. Gentili, avvocato dello Stato,

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    –        Ireland, by D. O’Hagan, acting as Agent, assisted by E. Fitzsimons and J. Jeffers, barristers,

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    –        the Greek Government, by G. Papadaki, acting as Agent,

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    –        the French Government, by J. Gstalter, acting as Agent,

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    –        the European Commission, by J. Samnadda and S. La Pergola, acting as Agents,

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    after hearing the Opinion of the Advocate General at the sitting on 29 June 2011

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    gives the following

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    Judgment

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    1        This reference for a preliminary ruling concerns the interpretation of Article 8(2) of Council Directive 92/100/EEC of 19 November 1992 on rental right and lending right and on certain rights related to copyright in the field of intellectual property (OJ 1992 L 346, p. 61), and of Article 3 of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (OJ 1992 L 167, p. 10).

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    2        The reference has been made in proceedings between Società Consortile Fonografici (‘SCF’) and Mr Del Corso, a dental surgeon, concerning the broadcasting in his dental practice of protected phonograms.

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     Legal context

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     International law

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    3        The Agreement on Trade-Related Aspects of Intellectual Property Rights (‘TRIPS Agreement’), which constitutes Annex 1C to the Agreement establishing the World Trade Organisation (WTO) signed at Marrakesh on 15 April 1994 and approved by Council Decision 94/800/EC of 22 December 1994 concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the agreements reached in the Uruguay Round multilateral negotiations (1986-1994) (OJ 1994 L 336, p. 1), contains a Part II entitled ‘Standards concerning the availability, scope and use of intellectual property rights’. Part II includes Article 14(1), (2) and (6) which provides:

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    ‘1.      In respect of a fixation of their performance on a phonogram, performers shall have the possibility of preventing the following acts when undertaken without their authorisation: the fixation of their unfixed performance and the reproduction of such fixation. Performers shall also have the possibility of preventing the following acts when undertaken without their authorisation: the broadcasting by wireless means and the communication to the public of their live performance.

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    2.      Producers of phonograms shall enjoy the right to authorise or prohibit the direct or indirect reproduction of their phonograms.

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    6.      Any Member may, in relation to the rights conferred under paragraphs 1, 2 and 3, provide for conditions, limitations, exceptions and reservations to the extent permitted by [the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations, adopted at Rome on 26 October 1961 (‘Rome Convention’)]. However, the provisions of Article 18 of the Berne Convention (1971) shall also apply, mutatis mutandis, to the rights of performers and producers of phonograms in phonograms.’

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    4        The World Intellectual Property Organisation (WIPO) adopted, on 20 December 1996, the WIPO Performances and Phonograms Treaty (‘WPPT’) and the WIPO Copyright Treaty (‘WCT’). The two treaties were approved on behalf of the European Community by Council Decision 2000/278/EC of 16 March 2000 (OJ 2000 L 89, p. 6).

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    5        Article 1 of the WPPT provides:

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    ‘1.      Nothing in this Treaty shall derogate from existing obligations that Contracting Parties have to each other under the [Rome Convention].

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    2.      Protection granted under this Treaty shall leave intact and shall in no way affect the protection of copyright in literary and artistic works. Consequently, no provision of this Treaty may be interpreted as prejudicing such protection.

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    3.      This Treaty shall not have any connection with, nor shall it prejudice any rights and obligations under, any other treaties.’

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    6        Under Article 2(b) of the WPPT, for the purposes of that treaty, ‘phonogram’ means the fixation of the sounds of a performance or of other sounds, or of a representation of sounds, other than in the form of a fixation incorporated in a cinematographic or other audiovisual work.

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    7        Article 2(d) of the WPPT provides that ‘producer of a phonogram’ means the person, or the legal entity, who or which takes the initiative and has the responsibility for the first fixation of the sounds of a performance or other sounds, or the representations of sounds.

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    8        Article 2(g) of the WPPT states that ‘communication to the public’ of a performance or a phonogram means the transmission to the public by any medium, otherwise than by broadcasting, of sounds of a performance or the sounds or the representations of sounds fixed in a phonogram. For the purposes of Article 15, ‘communication to the public’ includes making the sounds or representations of sounds fixed in a phonogram audible to the public.

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    9        Under the heading ‘Right of making available of fixed performances’, Article 10 of the WPPT provides:

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    ‘Performers shall enjoy the exclusive right of authorising the making available to the public of their performances fixed in phonograms, by wire or wireless means, in such a way that members of the public may access them from a place at a time individually chosen by them.’

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    10      Article 14 of the WPPT, headed ‘Right of making available of phonograms’, provides:

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    ‘Producers of phonograms shall enjoy the exclusive right of authorising the making available to the public of their phonograms, by wire or wireless means, in such a way that members of the public may access them from a place and at a time individually chosen by them.’

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    11      Article 15 of the WPPT, headed ‘Right to remuneration for broadcasting and communication to the public’ is worded as follows:

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    ‘1. Performers and producers of phonograms shall enjoy the right to a single equitable remuneration for the direct or indirect use of phonograms published for commercial purposes for broadcasting or for any communication to the public.

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    2. Contracting Parties may establish in their national legislation that the single equitable remuneration shall be claimed from the user by the performer or by the producer of a phonogram or by both. Contracting Parties may enact national legislation that, in the absence of an agreement between the performer and the producer of a phonogram, sets the terms according to which performers and producers of phonograms shall share the single equitable remuneration.

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    3. Any Contracting Party may, in a notification deposited with the Director-General of WIPO, declare that it will apply the provisions of paragraph 1 only in respect of certain uses, or that it will limit their application in some other way, or that it will not apply these provisions at all.

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    4. For the purposes of this Article, phonograms made available to the public by wire or wireless means in such a way that members of the public may access them from a place and at a time individually chosen by them shall be considered as if they had been published for commercial purposes.’

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    12      Under Article 23(1) of theWPPT:

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    ‘Contracting Parties undertake to adopt, in accordance with their legal systems, the measures necessary to ensure the application of this Treaty.’

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    13      Article 8 of the WCT, headed ‘Right of communication to the public’:

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    ‘Without prejudice to the provisions of Articles 11(1)(ii), 11bis(1)(i) and (ii), 11ter(1)(ii), 14(1)(ii) and 14bis(1) of the Berne Convention, authors of literary and artistic works shall enjoy the exclusive right of authorising any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access these works from a place and at at time individually chosen by them.’

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    14      The European Union is not a Contracting Party to the Rome Convention, unlike all the Member States of the European Union except Malta.

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    15      Under Article 12 of the Rome Convention, which concerns the secondary use of phonograms:

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    ‘If a phonogram published for commercial purposes, or a reproduction of such phonogram, is used directly for broadcasting or for any communication to the public, a single equitable remuneration shall be paid by the user to the performers, or to the producers of the phonograms, or to both. …’

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     European Union law

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    16      The last recital of the preamble to Decision 94/800 reads as follows:

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    ‘Whereas, by its nature, the Agreement establishing the World Trade Organisation, including the Annexes thereto, is not susceptible to being directly invoked in Community or Member State courts’.

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    17      Directive 2006/115/EC of the European Parliament and of the Council of 12 December 2006 on rental right and lending right and on certain rights related to copyright in the field of intellectual property (OJ 2006 L 376, p. 28), which entered into force on 16 January 2007, codified and repealed Directive 92/100.

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    18      However, in view of the dates of the facts of the dispute in the main proceedings, Directive 92/100 still applies to it.

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    19      The seventh recital of the preamble to Directive 92/100 reads:

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    ‘Whereas the creative and artistic work of authors and performers necessitates an adequate income as a basis for further creative and artistic work, and the investments required particularly for the production of phonograms and films are especially high and risky; whereas the possibility for securing that income and recouping that investment can only effectively be guaranteed through adequate legal protection of the rightholders concerned’.

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    20      The tenth recital of the preamble to that directive reads:

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    ‘Whereas the legislation of the Member States should be approximated in such a way so as not to conflict with the international conventions on which many Member States’ copyright and related rights laws are based’.

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    21      Article 8(2) and (3) of Directive 92/100 provides:

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    ‘2.      Member States shall provide a right in order to ensure that a single equitable remuneration is paid by the user, if a phonogram published for commercial purposes, or a reproduction of such phonogram, is used for broadcasting by wireless means or for any communication to the public, and to ensure that this remuneration is shared between the relevant performers and phonogram producers. Member States may, in the absence of agreement between the performers and phonogram producers, lay down the conditions as to the sharing of this remuneration between them.

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    3.      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.’

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    22      Article 8(2) of Directive 2006/115 provides:

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    ‘Member States shall provide a right in order to ensure that a single equitable remuneration is paid by the user, if a phonogram published for commercial purposes, or a reproduction of such phonogram, is used for broadcasting by wireless means or for any communication to the public, and to ensure that this remuneration is shared between the relevant performers and phonogram producers. Member States may, in the absence of agreement between the performers and phonogram producers, lay down the conditions as to the sharing of this remuneration between them’.

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    23      Recitals 15 and 25 of the preamble to Directive 2001/29 read as follows:

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    ‘15      The Diplomatic Conference held under the auspices of the [WIPO] in December 1996 led to the adoption of two new Treaties, the [WCT] and the [WPPT] … This Directive also serves to implement a number of the new international obligations.

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    25      The legal uncertainty regarding the nature and the level of protection of acts of on-demand transmission of copyright works and subject-matter protected by related rights over networks should be overcome by providing for harmonised protection at Community level. It should be made clear that all rightholders recognised by this Directive should have an exclusive right to make available to the public copyright works or any other subject-matter by way of interactive on-demand transmissions. Such interactive on-demand transmissions are characterised by the fact that members of the public may access them from a place and at a time individually chosen by them’.

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    24      Article 3 of Directive 2001/29 provides:

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    ‘1.      Member States shall provide authors with the exclusive right to authorise or prohibit any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them’.

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    2.      Member States shall provide for the exclusive right to authorise or prohibit the making available to the public, by wire or wireless means, in such a way that members of the public may access them from a place and at a time individually chosen by them:

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    (a)      for performers, of fixations of their performances;

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    (b)      for phonogram producers, of their phonograms;

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    (c)      for the producers of the first fixations of films, of the original and copies of their films;

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    (d)      for broadcasting organisations, of fixations of their broadcasts, whether these broadcasts are transmitted by wire or over the air, including by cable or satellite.

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    The rights referred to in paragraphs 1 and 2 shall not be exhausted by any act of communication to the public or making available to the public as set out in this Article’.

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     National law

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    25      Article 72 of Italian Law No 633 of 22 April 1941 on the protection of copyright and other rights relating to its exercise (legge n° 633 recante protezione del diritto d’autore e di altri diritti connessi al suo esercizio), as replaced by Article 11 of Legislative Decree No 68 implementing Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (decreto legislativo n° 68, attuazione della direttiva 2001/29/CE sull’armonizzazione di taluni aspetti del diritto d’autore e dei diritti connessi nella società dell’informazione), of 9 April 2003 (Ordinary Supplement to GURI No 87, of 14 April 2003), in the version applicable to the dispute in the main proceedings (‘the Law on copyright’), provides:

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    ‘Without prejudice to the rights conferred on the author under Title I, the producer of phonograms shall have the exclusive right, for the period and under the conditions laid down in the articles that follow:

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    (a)      to authorise the direct or indirect, temporary or permanent reproduction, by any means and in any form, in whole or in part, of his phonograms, and by any process of duplication;

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    (b)      to authorise the distribution of copies of his phonograms. The exclusive distribution right shall not be exhausted within the territory of the European Community, except in relation to the first sale of the medium containing the phonogram by the producer or with his consent in a Member State;

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    (c)      to authorise the rental or lending of copies of his phonograms. That right shall not be exhausted by the sale of the copies or their distribution in any form; and

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    (d)      to authorise the making available to the public of his phonograms in such a way that members of the public may access them from a place and at a time individually chosen by them. That right shall not be exhausted by any act making them available to the public.’

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    26      Article 73(1) of the Law on copyright, as replaced by Article 12 of Legislative Decree No 68 provides:

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    ‘Irrespective of the royalties for distribution, rental and lending to which they are entitled, producers of phonograms, as well as performers whose performance has been fixed or reproduced on phonograms, shall be entitled to receive remuneration for the use for profit of the phonograms, by means of cinematography, radio and television broadcasting, including communication to the public, via satellite, at public dances, in public establishments and on the occasion of any other public use of the phonograms themselves. It is for the producer to exercise that right, sharing the remuneration with the performers concerned.’

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    27      Article 73a of the Law on copyright as introduced by Article 9 of Legislative Decree No 685 (decreto legislativo n° 685, attuazione della direttiva 92/100/CEE concernente il diritto di noleggio, il diritto di prestito e taluni diritti connessi al diritto d’autore in materia di proprieta intellettuale), of 16 November 1994 (GURI No 293 of 16 December 1994), provides:

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    ‘1.      The performers and producer of the phonogram of which use has been made shall be entitled to equitable remuneration even where the use to which Article 73 refers was not for profit.

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    2.      In the absence of agreement to the contrary between the parties, such remuneration is determined, paid out and distributed according to the provisions of the [implementing rules for the amended Law on copyright].’

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     The dispute in the main proceedings and the questions referred for a preliminary ruling

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    28      SCF acts as a collecting agency, both within and outside Italy, and manages, collects and distributes the royalties of its associated phonogram producers.

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    29      In the exercise of its activity as agent, SCF conducted negotiations with the Associazione Dentisti Italiani (Association of Italian Dentists) with a view to concluding a collective agreement quantifying the relevant equitable remuneration within the meaning of Articles 73 or 73a of the Law on copyright for any ‘communication to the public’ of phonograms, including such communication in private professional practices.

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    30      As those negotiations were unsuccessful, on 16 June 2006 SCF brought an action before the Turin district court against Mr Marco Del Corso, seeking a declaration that he was broadcasting, by way of background music, in his private dental practice in Turin phonograms protected by property rights, and that, since it constituted ‘communication to the public’ within the meaning of the Law on copyright, international law and European Union law, such activity gave rise to the payment of equitable remuneration.

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    31      In his defence, Mr Del Corso argued, among other things, that, in his practice, the music was being broadcast by radio and that SCF could claim copyright only if the medium on which the phonogram had been fixed was used, whereas remuneration for listening to the broadcast was payable not by the listener, but by the radio or television broadcaster. The Law on copyright expressly made a distinction between remuneration due for a disk and that due for use of broadcasting equipment.

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    32      In any event, Mr Del Corso argued that Articles 73 and 73a of the amended Law on copyright were not applicable to the present case, as they referred to communication to the public in public places and on the occasion of any other public use of phonograms. A private dental practice could not be classified as a public place, unlike public health facilities.

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    33      By judgment of 20 March 2008, amended by order of 16 May 2008, the Turin district court dismissed the application by SCF, finding that in this case there was no communication for profit, the type of music played in the practice did not influence the patients’ choice of dentist, and the situation did not fall within those provided for in Article 73a of the Law on copyright, since the dental practice was private and, as such, could not be equated with a public place or place open to the public, given that the patients were not a random public but were individually identified and could normally attend the practice only if they had an appointment and, in any event, with the dentist’s consent

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    34      SCF appealed against that judgment to the Corte d’appello di Torino.

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    35      As it considered that there was some doubt over the question whether the broadcasting of phonograms in private professional practices such as dental practices, was included in the definition of ‘communication to the public’ for the purposes of international law and European Union law, the Corte d’appello decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

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    ‘1.      Are the [Rome Convention], the [TRIPs Agreement] and the [WPPT] directly applicable within the Community legal order?

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    2.      Are the abovementioned sources of uniform international law also directly effective within the context of private-law relationships?

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    3.      Do the concepts of ‘communication to the public’ contained in the abovementioned treaty-law texts mirror the Community concepts contained in Directives 92/100 and 2001/29 and, if not, which source should take precedence?

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    4.      Does the broadcasting, free of charge, of phonograms within private dental practices engaged in professional economic activity, for the benefit of patients of those practices and enjoyed by them without any active choice on their part, constitute ‘communication to the public’ or ‘making available to the public’ for the purposes of the application of Article 3(2)(b) of Directive 2001/29?

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    5.      Does such an act of transmission entitle the phonogram producers to the payment of remuneration?’

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     The questions referred for a preliminary ruling

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     The first to third questions

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    36      By its first to third questions, which should be examined together, the referring court asks, essentially, first, whether the Rome Convention, the TRIPS Agreement and the WPPT are directly applicable in the legal order of the European Union and whether individuals may rely on them directly. Next, it wishes to know whether the definition of ‘communication to the public’ in those international conventions is the same as that in Directives 92/100 and 2001/29 and, finally, in the event that the last question is answered in the negative, which source of law should prevail.

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    37      First, as regards the question whether the Rome Convention, the TRIPS Agreement and the WPPT are directly applicable in the legal order of the European Union, it must be recalled at the outset that, under Article 216(2) of the TFEU, ‘[a]greements concluded by the Union are binding upon the institutions of the Union and on its Member States’.

    116

    38      The TRIPS Agreement and the WPPT were signed by the European Union and approved by Decisions 94/800 and 2000/278 respectively. Consequently, that agreement and treaty bind the institutions of the European Union and the Member States.

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    39      Moreover, according to the settled case‑law of the Court, the provisions of agreements concluded by the Union form an integral part of the Union legal order (Case 181/73 Haegeman [1974] ECR 449, paragraph 5; Case 12/86 Demirel [1987] ECR 3719, paragraph 7, and Case C‑301/08 Bogiatzi [2009] ECR I‑10185, paragraph 23) and are therefore applicable in the Union.

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    40      The TRIPS Agreement and the WPPT are such agreements.

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    41      As regards the Rome Convention, it must be pointed out, first, that the European Union is not a contracting party to that convention and, second, that it cannot be regarded as having taken the place of its Member States as regards its application, if only because not all of those States are parties to that convention (see, by analogy, Case C‑188/07 Commune de Mesquer [2008] ECR I‑4501, paragraph 85).

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    42      Consequently, the provisions of the Rome Convention do not form part of the legal order of the European Union.

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    43      As regards, second, the question whether individuals are entitled to rely directly on the provisions of the TRIPS Agreement and the WPPT, it must be observed that, according to the case‑law of the Court of Justice, it is not sufficient that they are part of the legal order of the Union. Those provisions must also appear, as regards their content, to be unconditional and sufficiently precise and their nature and broad logic must not preclude their being so relied on (see, to that effect, Demirel, paragraph 14; Case C‑162/96 Racke [1998] ECR I‑3655, paragraph 31, and Case C‑344/04 IATA and ELFAA [2006] ECR I‑403, paragraph 39).

    122

    44      The first condition is met where the provisions relied on contain clear and precise obligations which are not subject, in their implementation or effects, to the adoption of any subsequent measure (see, to that effect, Case C‑213/03 Pêcheurs de l’étang de Berre [2004] ECR I‑7357, paragraph 39 and the case‑law cited, and Case C‑240/09 Lesoochranárske zoskupenie [2011] ECR I‑1255, paragraph 44 and the case‑law cited).

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    45      As regards the TRIPS Agreement, it must be recalled that, according to the last recital in the preamble to Decision 94/800, the Agreement establishing the World Trade Organisation, including its Annexes is not susceptible to being directly invoked in European Union or Member State courts.

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    46      Moreover, the Court has already held that, having regard to their nature and structure, the provisions of the TRIPs Agreement do not have direct effect. Those provisions are not, in principle, among the rules in the light of which the Court is to review the legality of measures of the Community institutions under the first paragraph of Article 230 EC and are not such as to create rights upon which individuals may rely directly before the courts by virtue of European Union law (see, to that effect, Case C‑149/96 Portugal v Council [1999] ECR I‑8395, paragraphs 42 to 48; Joined Cases C‑300/98 and C‑392/98 Dior and Others [2000] ECR I‑11307, paragraph 44, and Case C‑245/02 Anheuser-Busch [2004] ECR I‑10989, paragraph 54).

    125

    47      Article 23(1) of the WPPT provides that the Contracting Parties undertake to adopt, in accordance with their legal systems, the measures necessary to ensure the application of that Treaty.

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    48      It follows that the application of the provisions of the WPPT, in their implementation or effects, is subject to the adoption of subsequent measures. Therefore, such provisions have no direct effect in the law of the European Union and are not such as to create rights for individuals which they may rely on before the courts by virtue of that law.

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    49      As regards the Rome Convention, it must be recalled that, under Article 1(1) of the WPPT, nothing in that treaty is to derogate from existing obligations that Contracting Parties have to each other under the Rome Convention.

    128

    50      Accordingly, although the European Union is not a contracting party to the Rome Convention, it is none the less required, under Article 1(1) of the WPPT, not to stand in the way of the obligations of the Member States under that convention. Accordingly, that convention has indirect effects within the European Union.

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    51      Third, as regards the question of the relationship between the concept of ‘communication to the public’ in the TRIPS Agreement, the WPPT and the Rome Convention and that in Directives 92/100 and 2001/29, it must be recalled that, according to settled case‑law, European Union legislation must, so far as possible, be interpreted in a manner that is consistent with international law, in particular where its provisions are intended specifically to give effect to an international agreement concluded by the European Union (see, inter alia, Case C‑341/95Bettati [1998] ECR I‑4355, paragraph 20, and Case C‑306/05 SGAE [2006] ECR I‑11519, paragraph 35).

    130

    52      In that regard, it is common ground that, as recital 15 in the preamble to Directive 2001/29 makes clear, that directive is intended to implement a number of the Union’s new obligations under the WCT and the WPPT, which are considered, according to the same recital, to update the international protection for copyright and related rights significantly. In those circumstances, the concepts contained in that directive must be interpreted, as far as is possible, in the light of those two Treaties (see, to that effect, Case C‑456/06 Peek & Cloppenburg[2008] ECR I‑2731, paragraph 31).

    131

    53      Moreover, it follows from recital 10 of Directive 92/100 that the legislation of the Member States should be approximated in such a way as not to conflict with the international conventions on which many Member States’ laws on copyright and related rights are based.

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    54      As that directive is intended to harmonise certain aspects of the law on copyright and related rights in the field of intellectual property in compliance with the relevant international agreements such as, inter alia, the Rome Convention, the TRIPS Agreement and the WPPT, it is supposed to establish a set of rules compatible with those contained in those agreements.

    133

    55      It follows from all those considerations that the concepts appearing in Directives 92/100 and 2001/29, such as ‘communication to the public’ must be interpreted in the light of the equivalent concepts contained in those international agreements and in such a way that they are compatible with those agreements, taking account of the context in which those concepts are found and the purpose of the relevant provisions of the agreements as regards intellectual property.

    134

    56      Having regard to the foregoing considerations, the answer to the first to third questions is:

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    –        the provisions of the TRIPS Agreement and the WPPT are applicable in the legal order of the European Union,

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    –        as the Rome Convention does not form part of the legal order of the European Union it is not applicable there; however, it has indirect effects within the European Union

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    –        individuals may not rely directly either on that convention or on the TRIPS Agreement or the WPPT;

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    –        the concept of ‘communication to the public’ must be interpreted in the light of the equivalent concepts contained in the Rome Convention, the TRIPS Agreement and the WPPT and in such a way that it is compatible with those agreements, taking account of the context in which those concepts are found and the purpose of the relevant provisions of the agreements as regards intellectual property.

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     The fourth and fifth questions

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     Preliminary observations

    141

    57      By its fourth and fifth questions, the referring court asks whether the broadcasting, free of charge, of phonograms within private dental practices engaged in professional economic activity, for the benefit of patients of those practices and enjoyed by them without any active choice on their part, constitutes ‘communication to the public’ or ‘making available to the public’ for the purposes of the application of Article 3(2)(b) of Directive 2001/29 and whether such an act of transmission entitles the phonogram producers to the payment of remuneration?

    142

    58      In that regard, it must be observed at the outset that the referring court refers, in the wording of those questions, to Article 3(2)(b) of Directive 2001/29 concerning the exclusive right of phonogram producers to authorise or prohibit the making available to the public of their phonograms, by wire or wireless means, in such a way that members of the public may access them from a place and at a time individually chosen by them.

    143

    59      As is clear from the explanatory memorandum to the Proposal for Directive 2001/29 (COM(97) 628), confirmed by recital 25 of that directive, making available to the public, for the purposes of that provision, is intended to refer to ‘interactive on-demand transmissions’ characterised by the fact that members of the public may access them from a place and at a time individually chosen by them.

    144

    60      According to the decision for reference, the issue in the main proceedings is the broadcasting of music in a dental practice for the benefit of the patients present and not interactive on-demand transmission.

    145

    61      However, according to case‑law, in order to provide the national court with an answer which will be of use to it and enable it to determine the case before it, it is for the Court of Justice, if necessary, to reformulate the questions referred to it (Case C‑286/05 Haug [2006] ECR I‑4121, paragraph 17, and Case C‑420/06 Jager [2008] ECR I‑1315, paragraph 46).

    146

    62      Moreover, in order to provide the national court with an answer which will be of use to it and enable it to determine the case before it, the Court may find it necessary to consider provisions of European Union law which the national court has not referred to in its questions (C‑329/06 and C‑343/06 Wiedemann and Funk [2008] ECR I‑4635, paragraph 45, and Case C‑145/09 Tsakouridis [2010] ECR I‑11979, paragraph 36).

    147

    63      In that connection, it must be observed that Article 8(2) of Directive 92/100 is intended to ensure that a single equitable remuneration is paid by the user to performers and phonogram producers, if a phonogram published for commercial purposes, or a reproduction of such phonogram, is used for broadcasting by wireless means or for any communication to the public.

    148

    64      In those circumstances, the fourth and fifth questions of the referring court must be interpreted as asking, in essence, whether the concept of ‘communication to the public’ for the purposes of Article 8(2) of Directive 92/100 must be interpreted as meaning that it covers the broadcasting, free of charge, of phonograms within private dental practices engaged in professional economic activity, for the benefit of patients of those practices and enjoyed by them without any active choice on their part, and whether such an act of transmission entitles the phonogram producers to the payment of remuneration

    149

     Admissibility

    150

    65      Mr Del Corso considers that the fourth and fifth questions are inadmissible since he has never acknowledged that he was broadcasting protected phonograms to his patients by means of his radio-broadcast receiver in his private dental practice, particularly as such broadcasts were not made in exchange for the payment of an entrance fee by those patients.

    151

    66      In that regard, it must be recalled that it is not for the Court of Justice but for the national court to ascertain the facts which have given rise to the dispute before it and to establish the consequences which they have for the judgment which it is required to deliver (Case C‑435/97 WWF and Others [1999] ECR I‑5613, paragraph 32, and Case C‑232/09 Danosa [2010] ECR I‑11405, paragraph 33).

    152

    67      As regards the division of jurisdiction between the European Union judicature and national courts, it is in principle for the national court to determine whether the factual conditions triggering the application of a European Union rule are fulfilled in the case pending before it, while the Court, when giving a preliminary ruling, may, where appropriate, provide clarification to guide the national court in its interpretation (see, to that effect, Case C‑424/97 Haim [2000] ECR I‑5123, paragraph 58, and Joined Cases C‑22/08 and C‑23/08 Vatsouras and Koupatantze [2009] ECR I‑4585, paragraph 23).

    153

    68      In the present case, as is clear from the decision for reference, the fourth and fifth questions are based on the factual premiss that Mr Del Corso broadcast protected phonograms to his patients.

    154

    69      Accordingly, those questions must be considered to be admissible and must be examined in the factual framework defined by the referring court.

    155

     Merits

    156

    70      As regards the concept of ‘communication to the public’, it must be observed at the outset that it appears not only in Article 8(2) of Directive 92/100, a provision which is relevant to the main proceedings, but also in Article 3(1) of Directive 2001/29 and, inter alia, in Article 12 of the Rome Convention, Article 15 of the WPPT and Article 14(1) of the TRIPS agreement.

    157

    71      As is clear from paragraph 55 of the present judgment, the concept of ‘communication to the public’ must be interpreted in the light of the equivalent concepts contained in the Rome Convention, the TRIPS agreement and the WPPT and in such a way that it is compatible with those agreements, taking account of the context in which those concepts are found and the purpose of the provisions of those agreements.

    158

    72      It must be recalled that, under Article 3(1) of Directive 2001/29, Member States are to provide authors with the exclusive right to authorise or prohibit any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them. That provision is inspired by Article 8 of the WCT, the wording of which it reproduces almost verbatim.

    159

    73      Article 8(2) of Directive 92/100 requires Member States to provide a right in order to ensure that a single equitable remuneration is paid by the user if a phonogram published for commercial purposes, or a reproduction of such phonogram, is used for broadcasting by wireless means or for any communication to the public and to ensure that this remuneration is shared between the relevant performers and phonogram producers. That provision is inspired by Article 12 of the Rome Convention the wording of which it likewise reproduces almost verbatim (Case C‑245/00 SENA [2003] ECR I‑1251, paragraph 35).

    160

    74      It is clear from a comparison of Article 3(1) of Directive 2001/29 and Article 8(2) of Directive 92/100 that the concept of communication to the public appearing in those provisions is used in contexts which are not the same and pursue objectives which, while similar, are none the less different to some extent.

    161

    75      Under Article 3(1) of Directive 2001/29, authors have a right which is preventive in nature and allows them to intervene, between possible users of their work and the communication to the public which such users might contemplate making, in order to prohibit such use. On the other hand, under Article 8(2) of Directive 92/100, performers and producers of phonograms have a right which is compensatory in nature, which is not liable to be exercised before a phonogram published for commercial purposes, or a reproduction of such a phonogram, has been used for communication to the public by a user.

    162

    76      It follows that Article 8(2) of Directive 92/100, on the one hand, requires an individual interpretation of the concept of communication to the public. The same applies as regards the identity of the user and the question of the use of the phonogram at issue.

    163

    77      On the other hand, as the right under Article 8(2) of Directive 92/100 is exercised in the event of the use of a work, that right is clearly a right which is essentially financial in nature.

    164

    78      Thus, in order to assess whether a user is making a communication to the public within the meaning of Article 8(2) of Directive 92/100, in accordance with the need for an individual approach noted in paragraph 76 of the present judgment, the situation of a specific user and of all the persons to whom he communicates the protected phonograms must be assessed.

    165

    79      For the purposes of such an assessment, account must be taken of several complementary criteria, which are not autonomous and are interdependent. Consequently, they must be applied individually and in the light of their interaction with one another, given that in different specific situations, they may be met to varying degrees.

    166

    80      Thus, it is for the national court to make an overall assessment of a given situation.

    167

    81      In that connection, it should be pointed out that the Court has already identified certain criteria in the rather different context of Article 3(1) of Directive 2001/29.

    168

    82      First, the Court has already stressed the indispensable role of the user. Thus, the Court has held that the operator of a hotel or public house makes a communication to the public within the meaning of Article 3(1) of Directive 2001/29 when it intervenes, in full knowledge of the consequences of its action, to give access to a broadcast containing the protected work to its customers. Without its intervention the customers cannot enjoy the works broadcast, even though they are physically within the broadcast’s catchment area (see, to that effect,SGAE, paragraph 42, and Joined Cases C‑403/08 and C‑429/08 Football Association Premier League and Others [2011] ECR I‑9083, paragraph 195).

    169

    83      Second, the Court has already identified certain aspects of the concept of public.

    170

    84      In that regard, the Court has held that the term ‘public’ within the meaning of Article 3(1) of Directive 2001/29 refers to an indeterminate number of potential listeners, and, in addition, implies a fairly large number of persons (see, to that effect, Case C‑89/04 Mediakabel[2005] ECR I‑4891, paragraph 30; Case C‑192/04 Lagardère Active Broadcast [2005] ECR I‑7199, paragraph 31, and SGAE, paragraphs 37 and 38).

    171

    85      As regards, to begin with, the ‘indeterminate’ nature of the public, the Court has observed that, according to the definition of the concept of ‘communication to the public’ given by the WIPO glossary, which, while not legally binding, none the less sheds light on the interpretation of the concept of public, it means ‘making a work … perceptible in any appropriate manner to persons in general, that is, not restricted to specific individuals belonging to a private group’.

    172

    86      Next, as regards, the criterion of ‘a fairly large number of people’, this is intended to indicate that the concept of public encompasses a certain de minimis threshold, which excludes from the concept groups of persons which are too small, or insignificant.

    173

    87      In order to determine that number, the Court took account of the cumulative effects of making works available to potential audiences (SGAE, paragraph 39). In that connection, not only is it relevant to know how many persons have access to the same work at the same time but it is also necessary to know how many of them have access to it in succession.

    174

    88      Third, in paragraph 204 of the judgment in Football Association Premier League and Others, the Court held that it is not irrelevant that a ‘communication’ within the meaning of Article 3(1) of Directive 2001/29 is of a profit-making nature.

    175

    89      It follows that this must be all the more true in the case of the right to equitable remuneration provided for in Article 8(2) of directive 92/100 given its essentially financial nature.

    176

    90      More specifically, the Court has held that the action by a hotel operator by which it gives access to a broadcast work to its customers must be considered an additional service performed with the aim of obtaining some benefit, since the provision of that service has an influence on the hotel’s standing and, therefore, on the price of rooms. Similarly, the Court has held that the transmission of broadcast works by the operator of a public house is made with the intention that it should, and is likely to, have an effect upon the number of people going to that establishment and, ultimately, on its financial results (see, to that effect, SGAE, paragraph 44, and Football Association Premier League and Others, paragraph 205).

    177

    91      It is thus understood that the public which is the subject of the communication is both targeted by the user and receptive, in one way or another, to that communication, and not merely ‘caught’ by chance.

    178

    92      It is in the light of those criteria in particular that it must be determined whether, in a case such as that at issue in the main proceedings, a dentist who broadcasts phonograms to his patients, by way of background music, is making a communication to the public within the meaning of Article 8(2) of Directive 92/100.

    179

    93      Although, as was pointed out in paragraph 80 of the present judgment, it is, in principle, for the national courts to determine whether that is the situation in a particular case and to make all definitive findings of fact in that regard, it must none the less be held that the Court has all the evidence necessary in relation to the case in the main proceedings to assess whether there is such an act of communication to the public.

    180

    94      It must be observed, first, that, as in the cases leading to the judgments in SGAE and Football Association Premier League and Others, although the patients of a dentist are in the area covered by the signal conveying the phonograms, they are able to listen to those phonograms only as a result of the deliberate intervention of that dentist. Therefore such a dentist must be considered to be intervening deliberately in the broadcasting of those phonograms.

    181

    95      Next, as regards the patients of a dentist such as the one in the case in the main proceedings, it must be observed that they generally form a very consistent group of persons and thus constitute a determinate circle of potential recipients, as other people do not, as a rule, have access to treatment by that dentist. Consequently, they are not ‘persons in general’ as defined in paragraph 85 of the present judgment.

    182

    96      As regards, further, having regard to paragraph 84 of the present judgment, the number of persons to whom the same broadcast phonogram is made audible by the dentist, it must be held that, in the case of the patients of a dentist, the number of persons is not large, indeed it is insignificant, given that the number of persons present in his practice at the same time is, in general, very limited. Moreover, although there are a number of patients in succession, the fact remains that, as those patients attend one at a time, they do not generally hear the same phonograms, or the broadcast phonograms, in particular.

    183

    97      Finally, it cannot be disputed that, in a situation such as that in the main proceedings, a dentist who broadcasts phonograms, by way of background music, in the presence of his patients cannot reasonably either expect a rise in the number of patients because of that broadcast alone or increase the price of the treatment he provides. Therefore, such a broadcast is not liable, in itself, to have an impact on the income of that dentist.

    184

    98      The patients of a dentist visit a dental practice with the sole objective of receiving treatment, as the broadcasting of phonograms is in no way a part of dental treatment. They have access to certain phonograms by chance and without any active choice on their part, according to the time of their arrival at the practice and the length of time they wait and the nature of the treatment they undergo. Accordingly, it cannot be presumed that the usual customers of a dentist are receptive as regards the broadcast in question.

    185

    99      Consequently such a broadcast is not of a profit-making nature, and thus does not fulfil the criterion set out in paragraph 90 of the present judgment.

    186

    100    It follows from all the foregoing considerations that a dentist such as the one in question in the case in the main proceedings who broadcasts phonograms free of charge in his dental practice, for the benefit of his clients and enjoyed by them without any active choice on their part, is not making a ‘communication to the public’ for the purposes of the application of Article 8(2) of Directive 92/100.

    187

    101    It follows that the requirement set out in Article 8(2) of Directive 92/100 for the payment of equitable remuneration by the user, namely that the user makes a ‘communication to the public’ within the meaning of that provision, is not met in a situation such as that in the main proceedings.

    188

    102    Accordingly, the answer to the fourth and fifth questions is that the concept of ‘communication to the public’ for the purposes of Article 8(2) of Directive 92/100 must be interpreted as meaning that it does not cover the broadcasting, free of charge, of phonograms within private dental practices engaged in professional economic activity, such as the one at issue in the main proceedings, for the benefit of patients of those practices and enjoyed by them without any active choice on their part. Therefore such an act of transmission does not entitle the phonogram producers to the payment of remuneration.

    189

     Costs

    190

    103    Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

    191

    On those grounds, the Court (Third Chamber) hereby rules:

    192

    1.      The provisions of the Agreement on Trade-Related Aspects of Intellectual Property Rights, which constitutes Annex 1C to the Agreement establishing the World Trade Organisation (WTO) signed at Marrakesh on 15 April 1994 and approved by Council Decision 94/800/EC of 22 December 1994 concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the agreements reached in the Uruguay Round multilateral negotiations (1986-1994) and of the World Intellectual Property Organisation (WIPO) Performances and Phonograms Treaty of 20 December 1996 are applicable in the legal order of the European Union.

    193

    As the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations, adopted at Rome on 26 October 1961, does not form part of the legal order of the European Union it is not applicable there; however, it has indirect effects within the European Union.

    194

    Individuals may not rely directly either on that convention or on the agreement or the treaty mentioned above.

    195

    The concept of ‘communication to the public’ which appears in Council Directive 92/100/EEC of 19 November 1992 on rental right and lending right and on certain rights related to copyright in the field of intellectual property and Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society must be interpreted in the light of the equivalent concepts contained in the convention, the agreement and the treaty mentioned above and in such a way that it is compatible with those agreements, taking account of the context in which those concepts are found and the purpose of the relevant provisions of the agreements as regards intellectual property.

    196

    2.      The concept of ‘communication to the public’ for the purposes of Article 8(2) of Directive 92/100 must be interpreted as meaning that it does not cover the broadcasting, free of charge, of phonograms within private dental practices engaged in professional economic activity, such as the one at issue in the main proceedings, for the benefit of patients of those practices and enjoyed by them without any active choice on their part. Therefore such an act of transmission does not entitle the phonogram producers to the payment of remuneration.

  • 2 Sociedad General de Autores y Editores de España (SGAE) v Rafael Hoteles SA, C-306/05, December 7, 2006 (ECJ) (communication to the public) (OPTIONAL)

    1

    JUDGMENT OF THE COURT (Third Chamber)

    2

    7 December 2006 (*)

    3

    (Copyright and related rights in the information society – Directive 2001/29/EC – Article 3 – Concept of communication to the public – Works communicated by means of television sets installed in hotel rooms)

    4

    In Case C-306/05,

    5

    REFERENCE for a preliminary ruling under Article 234 EC from the Audiencia Provincial de Barcelona (Spain), made by decision of 7 June 2005, received at the Court on 3 August 2005, in the proceedings

    6

    Sociedad General de Autores y Editores de España (SGAE)

    7

    v

    8

    Rafael Hoteles SA,

    9

    THE COURT (Third Chamber),

    10

    composed of A. Rosas, President of the Chamber, A. Borg Barthet, J. Malenovský (Rapporteur), U. Lõhmus and A. Ó Caoimh, Judges,

    11

    Advocate General: E. Sharpston,

    12

    Registrar: M. Ferreira, Principal Administrator,

    13

    having regard to the written procedure and further to the hearing on 4 May 2006,

    14

    after considering the observations submitted on behalf of:

    15

    –        the Sociedad General de Autores y Editores de España (SGAE), by R. Gimeno-Bayón Cobos and P. Hernández Arroyo, abogados,

    16

    –        Rafael Hoteles SA, by R. Tornero Moreno, abogado,

    17

    –        the French Government, by G. de Bergues and J.‑C. Niollet, acting as Agents,

    18

    –        Ireland, by D.J. O’Hagan, acting as Agent, assisted by N. Travers BL,

    19

    –        the Austrian Government, by C. Pesendorfer, acting as Agent,

    20

    –        the Polish Government, by K. Murawski, U. Rutkowska and P. Derwicz, acting as Agents,

    21

    –        the Commission of the European Communities, by J.R. Vidal Puig and W. Wils, acting as Agents,

    22

    after hearing the Opinion of the Advocate General at the sitting on 13 July 2006,

    23

    gives the following

    24

    Judgment

    25

    1        The reference for a preliminary ruling concerns the interpretation of Article 3 of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (OJ 2001 L 167, p. 10).

    26

    2        This reference was made in the context of proceedings between the Sociedad General de Autores y Editores de España (SGAE) and Rafael Hoteles SA (‘Rafael’), concerning the alleged infringement, by the latter, of intellectual property rights managed by SGAE.

    27

     Legal context

    28

     Applicable international law

    29

    3        The Agreement on Trade-Related Aspects of Intellectual Property Rights (‘the TRIPs Agreement’), as set out in Annex 1C to the Marrakesh Agreement establishing the World Trade Organisation, was approved on behalf of the European Community by Council Decision 94/800/EC of 22 December 1994 concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the agreements reached in the Uruguay Round multilateral negotiations (1986-1994) (OJ 1994 L 336, p. 1).

    30

    4        Article 9(1) of the TRIPs Agreement provides:

    31

    ‘Members shall comply with Articles 1 through 21 of the Berne Convention (1971) and the Appendix thereto. However, Members shall not have rights or obligations under this Agreement in respect of the rights conferred under Article 6bis of that Convention or of the rights derived therefrom.’

    32

    5        Article 11 of the Berne Convention for the Protection of Literary and Artistic Works (Paris Act of 24 July 1971), as amended on 28 September 1979 (‘the Berne Convention’) provides:

    33

    ‘1.      Authors of dramatic, dramatico-musical and musical works shall enjoy the exclusive right of authorising:

    34

    (i)      the public performance of their works, including such public performance by any means or process;

    35

    (ii)      any communication to the public of the performance of their works.

    36

    2.      Authors of dramatic or dramatico-musical works shall enjoy, during the full term of their rights in the original works, the same rights with respect to translations thereof.’

    37

    6        Article 11bis(1) of the Berne Convention provides:

    38

    ‘Authors of literary and artistic works shall enjoy the exclusive right of authorising:

    39

    (i)      the broadcasting of their works or the communication thereof to the public by any other means of wireless diffusion of signs, sounds or images;

    40

    (ii)      any communication to the public by wire or by rebroadcasting of the broadcast of the work, when this communication is made by an organization other than the original one;

    41

    (iii) the public communication by loudspeaker or any other analogous instrument transmitting, by signs, sounds or images, the broadcast of the work.’

    42

    7        The World Intellectual Property Organisation (WIPO) adopted in Geneva, on 20 December 1996, the WIPO Performances and Phonograms Treaty and the WIPO Copyright Treaty. Those two treaties were approved on behalf of the Community by Council Decision 2000/278/EC of 16 March 2000 (OJ 2000 L 89, p. 6).

    43

    8        Article 8 of the WIPO Copyright Treaty provides:

    44

    ‘Without prejudice to the provisions of Articles 11(1)(ii), 11bis(1)(i) and (ii), 11ter(1)(ii), 14(1)(ii) and 14bis(1) of the Berne Convention, authors of literary and artistic works shall enjoy the exclusive right of authorising any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access these works from a place and at a time individually chosen by them.’

    45

    9        Joint declarations concerning the WIPO Copyright Treaty were adopted by the Diplomatic Conference on 20 December 1996.

    46

    10      The joint declaration concerning Article 8 of that Treaty provides:

    47

    ‘It is understood that the mere provision of physical facilities for enabling or making a communication does not in itself amount to communication within the meaning of this Treaty or the Berne Convention. It is further understood that nothing in Article 8 precludes a Contracting Party from applying Article 11bis(2).’

    48

     Community legislation

    49

    11      The ninth recital in the preamble to Directive 2001/29 states:

    50

    ‘Any harmonisation of copyright and related rights must take as a basis a high level of protection, since such rights are crucial to intellectual creation. Their protection helps to ensure the maintenance and development of creativity in the interests of authors, performers, producers, consumers, culture, industry and the public at large. Intellectual property has therefore been recognised as an integral part of property.’

    51

    12      The 10th recital in the preamble to that directive states:

    52

    ‘If authors or performers are to continue their creative and artistic work, they have to receive an appropriate reward for the use of their work, as must producers in order to be able to finance this work. The investment required to produce products such as phonograms, films or multimedia products, and services such as “on-demand” services, is considerable. Adequate legal protection of intellectual property rights is necessary in order to guarantee the availability of such a reward and provide the opportunity for satisfactory returns on this investment.’

    53

    13      The 15th recital in the preamble to that directive states:

    54

    ‘The Diplomatic Conference held under the auspices of the [WIPO] in December 1996 led to the adoption of two new Treaties, the [WIPO Copyright Treaty] and the [WIPO Performances and Phonograms Treaty], dealing respectively with the protection of authors and the protection of performers and phonogram producers. Those Treaties update the international protection for copyright and related rights significantly, not least with regard to the so-called “digital agenda”, and improve the means to fight piracy world-wide. The Community and a majority of Member States have already signed the Treaties and the process of making arrangements for the ratification of the Treaties by the Community and the Member States is under way. This Directive also serves to implement a number of the new international obligations.’

    55

    14      The 23rd recital in the preamble to that directive states:

    56

    ‘This Directive should harmonise further the author’s right of communication to the public. This right should be understood in a broad sense covering all communication to the public not present at the place where the communication originates. This right should cover any such transmission or retransmission of a work to the public by wire or wireless means, including broadcasting. This right should not cover any other acts.’

    57

    15      The 27th recital in the preamble to Directive 2001/29 states:

    58

    ‘The mere provision of physical facilities for enabling or making a communication does not in itself amount to communication within the meaning of this Directive.’

    59

    16      Article 3 of that directive provides:

    60

    ‘1.      Member States shall provide authors with the exclusive right to authorise or prohibit any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them. 

    61

    2.      Member States shall provide for the exclusive right to authorise or prohibit the making available to the public, by wire or wireless means, in such a way that members of the public may access them from a place and at a time individually chosen by them:

    62

    (a)      for performers, of fixations of their performances;

    63

    (b)      for phonogram producers, of their phonograms;

    64

    (c)      for the producers of the first fixations of films, of the original and copies of their films;

    65

    (d)      for broadcasting organisations, of fixations of their broadcasts, whether these broadcasts are transmitted by wire or over the air, including by cable or satellite.

    66

    3.      The rights referred to in paragraphs 1 and 2 shall not be exhausted by any act of communication to the public or making available to the public as set out in this Article.’

    67

     National legislation

    68

    17      The codified text of the Law on intellectual property, which rectifies, clarifies and harmonises the legislative provisions in force in that area (‘the LIP’), was approved by Royal Legislative Decree No 1/1996 of 12 April 1996 (BOE No 97 of 22 April 1996).

    69

    18      Article 17 of the LIP provides:

    70

    ‘The author has the exclusive rights of exploitation of his works regardless of their form and, inter alia, the exclusive rights of reproduction, distribution, public communication and conversion which cannot be exercised without his permission except in circumstances laid down in this Law.’

    71

    19      Article 20(1) of the LIP provides:

    72

    ‘Public communication shall mean any act by which a number of persons can have access to the work without prior distribution of copies to each of those persons.

    73

    Communication which takes place within a strictly domestic location which is not integrated into or connected to a distribution network of any kind shall not be classified as public.’

    74

     The main proceedings and the questions referred for a preliminary ruling

    75

    20      SGAE is the body responsible for the management of intellectual property rights in Spain.

    76

    21      SGAE took the view that the use of television sets and the playing of ambient music within the hotel owned by Rafael, during the period from June 2002 to March 2003, involved communication to the public of works belonging to the repertoire which it manages. Considering that those acts were carried out in breach of the intellectual property rights attached to the works, SGAE brought an action for compensation against Rafael before the Juzgado de Primera Instancia (Court of First Instance) No 28, Barcelona (Spain).

    77

    22      By decision of 6 June 2003, that court partially rejected the claim. It took the view that the use of television sets in the hotel’s rooms did not involve communication to the public of works managed by SGAE. It considered, on the other hand, that the claim was well founded as regards the well-known existence in hotels of communal areas with television sets and where ambient music is played.

    78

    23      SGAE and Rafael both brought appeals before the Audiencia Provincial (Provincial Court) de Barcelona, which decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

    79

    ‘(1)      Does the installation in hotel rooms of television sets to which a satellite or terrestrial television signal is sent by cable constitute an act of communication to the public which is covered by the harmonisation of national laws protecting copyright provided for in Article 3 of Directive [2001/29]?

    80

    (2)      Is the fact of deeming a hotel room to be a strictly domestic location, so that communication by means of television sets to which is fed a signal previously received by the hotel is not regarded as communication to the public, contrary to the protection of copyright pursued by Directive [2001/29]?

    81

    (3)      For the purposes of protecting copyright in relation to acts of communication to the public provided for in Directive [2001/29], can a communication that is effected through a television set inside a hotel bedroom be regarded as public because successive viewers have access to the work?’

    82

     The request to have the oral procedure reopened

    83

    24      By letter received at the Court of Justice on 12 September 2006, Rafael requested the reopening of the oral procedure, pursuant to Article 61 of the Rules of Procedure of the Court of Justice.

    84

    25      That request is based on the alleged inconsistency of the Advocate General’s Opinion. Rafael submits that the negative response in the Opinion to the first question unavoidably implies a negative response to the second and third questions, whereas the Advocate General suggests that the answer to the latter questions should be in the affirmative.

    85

    26      On that point, it is appropriate to recall that neither the Statute of the Court of Justice nor the Rules of Procedure make provision for the parties to submit observations in response to the Advocate General’s Opinion (see, in particular, Case C-259/04 Emanuel [2006] ECR I‑3089, paragraph 15).

    86

    27      The Court may, certainly, of its own motion, on a proposal from the Advocate General or at the request of the parties, order that the oral procedure should be reopened in accordance with Article 61 of its Rules of Procedure, if it considers that it lacks sufficient information or that the case must be dealt with on the basis of an argument which has not been debated between the parties (see, in particular, Case C-209/01 Schilling and Fleck-Schilling [2003] ECR I‑13389, paragraph 19, and Case C-30/02 Recheio – Cash & Carry [2004] ECR I‑6051, paragraph 12).

    87

    28      However, the Court finds that in the present case it has all the information necessary to give judgment.

    88

    29      Consequently, there is no need to order the reopening of the oral procedure.

    89

     The questions

    90

     Preliminary observations

    91

    30      It should be stated at the outset that, contrary to Rafael’s submissions, the situation at issue in the main proceedings does not fall within Council Directive 93/83/EEC of 27 September 1993 on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission (OJ 1993 L 248, p. 15), but within Directive 2001/29. The latter applies to all communications to the public of protected works, whereas Directive 93/83 only provides for minimal harmonisation of certain aspects of protection of copyright and related rights in the case of communication to the public by satellite or cable retransmission of programmes from other Member States. As the Court has already held, unlike Directive 2001/29, this minimal harmonisation does not provide information to enable the Court to reply to a question concerning a situation similar to that which is the subject of the questions referred for a preliminary ruling (see, to that effect, Case C-293/98 Egeda [2000] ECR I‑629, paragraphs 25 et 26).

    92

    31      Next, it should be noted that the need for uniform application of Community law and the principle of equality require that where provisions of Community law make no express reference to the law of the Member States for the purpose of determining their meaning and scope, as is the case with Directive 2001/29/EC, they must normally be given an autonomous and uniform interpretation throughout the Community (see, in particular, Case C-357/98 Yiadom [2000] ECR I‑9265, paragraph 26, and Case C-245/00 SENA [2003] ECR I‑1251, paragraph 23). It follows that the Austrian Government cannot reasonably maintain that it is for the Member States to provide the definition of ‘public’ to which Directive 2001/29 refers but does not define.

    93

     The first and third questions

    94

    32      By its first and third questions, which it is appropriate to examine together, the referring court asks, essentially, whether the distribution of a signal through television sets to customers in hotel rooms constitutes communication to the public within the meaning of Article 3(1) of Directive 2001/29, and whether the installation of television sets in hotel rooms constitutes, in itself, an act of that nature.

    95

    33      In that respect, it should be noted that that Directive does not define ‘communication to the public’.

    96

    34      According to settled case-law, in interpreting a provision of Community law it is necessary to consider not only its wording, but also the context in which it occurs and the objectives pursued by the rules of which it is part (see, in particular, Case C‑156/98 Germany vCommission [2000] ECR I‑6857, paragraph 50, and Case C‑53/05 Commission v Portugal [2006] ECR I-0000, paragraph 20).

    97

    35      Moreover, Community legislation must, so far as possible, be interpreted in a manner that is consistent with international law, in particular where its provisions are intended specifically to give effect to an international agreement concluded by the Community (see, in particular, Case C‑341/95 Bettati [1998] ECR I‑4355, paragraph 20 and the case-law cited).

    98

    36      It follows from the 23rd recital in the preamble to Directive 2001/29 that ‘communication to the public’ must be interpreted broadly. Such an interpretation is moreover essential to achieve the principal objective of that directive, which, as can be seen from its ninth and tenth recitals, is to establish a high level of protection of, inter alios, authors, allowing them to obtain an appropriate reward for the use of their works, in particular on the occasion of communication to the public.

    99

    37      The Court has held that, in the context of this concept, the term ‘public’ refers to an indeterminate number of potential television viewers (Case C‑89/04 Mediakabel [2005] ECR I‑4891, paragraph 30, and Case C-192/04 Lagardère Active Broadcast [2005] ECR I‑7199, paragraph 31).

    100

    38      In a context such as that in the main proceedings, a general approach is required, making it necessary to take into account not only customers in hotel rooms, such customers alone being explicitly mentioned in the questions referred for a preliminary ruling, but also customers who are present in any other area of the hotel and able to make use of a television set installed there. It is also necessary to take into account the fact that, usually, hotel customers quickly succeed each other. As a general rule, a fairly large number of persons are involved, so that they may be considered to be a public, having regard to the principal objective of Directive 2001/29, as referred to in paragraph 36 of this judgment.

    101

    39      In view, moreover, of the cumulative effects of making the works available to such potential television viewers, the latter act could become very significant in such a context. It matters little, accordingly, that the only recipients are the occupants of rooms and that, taken separately, they are of limited economic interest for the hotel.

    102

    40      It should also be pointed out that a communication made in circumstances such as those in the main proceedings constitutes, according to Article 11bis(1)(ii) of the Berne Convention, a communication made by a broadcasting organisation other than the original one. Thus, such a transmission is made to a public different from the public at which the original act of communication of the work is directed, that is, to a new public.

    103

    41      As is explained in the Guide to the Berne Convention, an interpretative document drawn up by the WIPO which, without being legally binding, nevertheless assists in interpreting that Convention, when the author authorises the broadcast of his work, he considers only direct users, that is, the owners of reception equipment who, either personally or within their own private or family circles, receive the programme. According to the Guide, if reception is for a larger audience, possibly for profit, a new section of the receiving public hears or sees the work and the communication of the programme via a loudspeaker or analogous instrument no longer constitutes simple reception of the programme itself but is an independent act through which the broadcast work is communicated to a new public. As the Guide makes clear, such public reception falls within the scope of the author’s exclusive authorisation right.

    104

    42      The clientele of a hotel forms such a new public. The transmission of the broadcast work to that clientele using television sets is not just a technical means to ensure or improve reception of the original broadcast in the catchment area. On the contrary, the hotel is the organisation which intervenes, in full knowledge of the consequences of its action, to give access to the protected work to its customers. In the absence of that intervention, its customers, although physically within that area, would not, in principle, be able to enjoy the broadcast work.

    105

    43      It follows from Article 3(1) of Directive 2001/29 and Article 8 of the WIPO Copyright Treaty that for there to be communication to the public it is sufficient that the work is made available to the public in such a way that the persons forming that public may access it. Therefore, it is not decisive, contrary to the submissions of Rafael and Ireland, that customers who have not switched on the television have not actually had access to the works.

    106

    44      Moreover, it is apparent from the documents submitted to the Court that the action by the hotel by which it gives access to the broadcast work to its customers must be considered an additional service performed with the aim of obtaining some benefit. It cannot be seriously disputed that the provision of that service has an influence on the hotel’s standing and, therefore, on the price of rooms. Therefore, even taking the view, as does the Commission of the European Communities, that the pursuit of profit is not a necessary condition for the existence of a communication to the public, it is in any event established that the communication is of a profit-making nature in circumstances such as those in the main proceedings.

    107

    45      With reference to the question whether the installation of television sets in hotel rooms constitutes, in itself, a communication to the public within the meaning of Article 3(1) of Directive 2001/29, it should be pointed out that the 27th recital in the preamble to that directive states, in accordance with Article 8 of the WIPO Copyright Treaty, that ‘[t]he mere provision of physical facilities for enabling or making a communication does not in itself amount to communication within the meaning of [that] Directive.’

    108

    46      While the mere provision of physical facilities, usually involving, besides the hotel, companies specialising in the sale or hire of television sets, does not constitute, as such, a communication within the meaning of Directive 2001/29, the installation of such facilities may nevertheless make public access to broadcast works technically possible. Therefore, if, by means of television sets thus installed, the hotel distributes the signal to customers staying in its rooms, then communication to the public takes place, irrespective of the technique used to transmit the signal.

    109

    47      Consequently, the answer to the first and second questions is that, while the mere provision of physical facilities does not as such amount to a communication within the meaning of Directive 2001/29, the distribution of a signal by means of television sets by a hotel to customers staying in its rooms, whatever technique is used to transmit the signal, constitutes communication to the public within the meaning of Article 3(1) of that directive.

    110

     The second question

    111

    48      By its second question, the referring court asks, essentially, whether the private nature of hotel rooms precludes the communication of a work to those rooms by means of television sets from constituting communication to the public within the meaning of Article 3(1) of Directive 2001/29.

    112

    49      In that respect, Ireland submits that communication or making available of works in the private context of hotel rooms should be distinguished from the same acts which take place in public areas of the hotel. This argument cannot however be accepted.

    113

    50      It is apparent from both the letter and the spirit of Article 3(1) of Directive 2001/29 and Article 8 of the WIPO Copyright Treaty – both of which require authorisation by the author not for retransmissions in a public place or one which is open to the public but for communications by which the work is made accessible to the public – that the private or public nature of the place where the communication takes place is immaterial.

    114

    51      Moreover, according to the provisions of Directive 2001/29 and of the WIPO Copyright Treaty, the right of communication to the public covers the making available to the public of works in such a way that they may access them from a place and at a time individually chosen by them. That right of making available to the public and, therefore, of communication to the public would clearly be meaningless if it did not also cover communications carried out in private places.

    115

    52      In support of the argument concerning the private nature of hotel rooms, Ireland also invokes the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘the ECHR’), and in particular its Article 8, which prohibits any arbitrary or disproportionate interference by a public authority in the sphere of private activity. However, this argument cannot be accepted either.

    116

    53      In that respect, it should be pointed out that Ireland does not make clear who, in a context such as that of the main proceedings, would be the victim of such an arbitrary or disproportionate intervention. Ireland can hardly have in mind the customers who benefit from the signal which they receive and who are under no obligation to pay the authors. Nor can the victim be the hotel since, even though it must be concluded that the hotel is obliged to make such payment, it cannot claim to be a victim of an infringement of Article 8 of the ECHR in so far as the rooms, once made available to its customers, cannot be considered as coming within its private sphere.

    117

    54      Having regard to all of the foregoing considerations, the answer to the second question is that the private nature of hotel rooms does not preclude the communication of a work by means of television sets from constituting communication to the public within the meaning of Article 3(1) of Directive 2001/29.

    118

     Costs

    119

    55      Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

    120

    On those grounds, the Court (Third Chamber) hereby rules:

    121

    1.      While the mere provision of physical facilities does not as such amount to communication within the meaning of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of copyright and related rights in the information society, the distribution of a signal by means of television sets by a hotel to customers staying in its rooms, whatever technique is used to transmit the signal, constitutes communication to the public within the meaning of Article 3(1) of that directive.

    122

    2.      The private nature of hotel rooms does not preclude the communication of a work by means of television sets from constituting communication to the public within the meaning of Article 3(1) of Directive 2001/29.

  • 3 Phonographic Performance (Ireland) Limited v Ireland, Attorney General, C-162/10, March 15, 2012 (ECJ) (communication to the public) (OPTIONAL)

    1

    JUDGMENT OF THE COURT (Third Chamber)

    2

    15 March 2012 (*)

    3

    (Copyright and related rights — Directive 2006/115/EC — Articles 8 and 10 — Concepts of ‘user’ and ‘communication to the public’ — Installation in hotel bedrooms of televisions and/or radios to which the hotelier distributes a broadcast signal)

    4

    In Case C‑162/10,

    5

    REFERENCE for a preliminary ruling under Article 267 TFEU, from the High Court (Commercial Division) (Ireland), made by decision of 23 March 2010, received at the Court on 7 April 2010, in the proceedings

    6

    Phonographic Performance (Ireland) Limited

    7

    v

    8

    Ireland,

    9

    Attorney General,

    10

    THE COURT (Third Chamber),

    11

    composed of K. Lenaerts, President of the Chamber, J. Malenovský (Rapporteur), E. Juhász, G. Arestis and T. von Danwitz, Judges,

    12

    Advocate General: V. Trstenjak,

    13

    Registrar: A. Impellizzeri, Administrator,

    14

    having regard to the written procedure and further to the hearing on 7 April 2011,

    15

    after considering the observations submitted on behalf of:

    16

    –        Phonographic Performance (Ireland) Limited, by H. Sheehy, solicitor, and J. Newman, BL,

    17

    –        Ireland, by D. O’Hagan, acting as Agent, and E. Fitzsimons and J. Jeffers, BL,

    18

    –        the Greek Government, by G. Papadaki, M. Germani and G. Alexaki, acting as Agents,

    19

    –        the Italian Government, by P. Gentili, acting as Agent,

    20

    –        the French Government, by J. Gstalter, acting as Agent,

    21

    –        European Commission, by J. Samnadda and S. La Pergola, acting as Agents.

    22

    after hearing the Opinion of the Advocate General at the sitting on 29 June 2011

    23

    gives the following

    24

    Judgment

    25

    1        This reference for a preliminary ruling relates to the interpretation of Articles 8 and 10 of Directive 2006/115/EC of the European Parliament and of the Council of 12 December 2006 on rental right and lending right and on certain rights related to copyright in the field of intellectual property (OJ 2006 L 376, p. 28).

    26

    2        The reference has been made in the course of proceedings between Phonographic Performance (Ireland) Limited (‘PPL’) and Ireland.

    27

     Legal context

    28

     International law

    29

    3        The World Intellectual Property Organisation (‘WIPO’) adopted in Geneva, on 20 December 1996, the WIPO Performances and Phonograms Treaty (‘the WPPT’) and the WIPO Copyright Treaty. Those two treaties were approved on behalf of the European Community by Council Decision 2000/278/EC of 16 March 2000 (OJ 2000 L 89, p. 6).

    30

    4        Under Article 2(b), (d) and (g) of the WPPT:

    31

    ‘For the purposes of this Treaty:

    32

    (b)      “phonogram” means the fixation of the sounds of a performance or of other sounds, or of a representation of sounds, other than in the form of a fixation incorporated in a cinematographic or other audiovisual work;

    33

    ...

    34

    (d)      “producer of a phonogram” means the person, or the legal entity, who or which takes the initiative and has the responsibility for the first fixation of the sounds of a performance or other sounds, or the representations of sounds.

    35

    ...

    36

    (g)      “communication to the public” of a performance or a phonogram means the transmission to the public by any medium, otherwise than by broadcasting, of sounds of a performance or the sounds or the representations of sounds fixed in a phonogram. For the purposes of Article 15, “communication to the public” includes making the sounds or representations of sounds fixed in a phonogram audible to the public.’

    37

    5        Article 15 of the WPPT reads:

    38

    ‘(1)      Performers and producers of phonograms shall enjoy the right to a single equitable remuneration for the direct or indirect use of phonograms published for commercial purposes for broadcasting or for any communication to the public.

    39

    (2)      Contracting Parties may establish in their national legislation that the single equitable remuneration shall be claimed from the user by the performer or by the producer of a phonogram or by both. Contracting Parties may enact national legislation that, in the absence of an agreement between the performer and the producer of a phonogram, sets the terms according to which performers and producers of phonograms shall share the single equitable remuneration.

    40

    (3)      Any Contracting Party may, in a notification deposited with the Director-General of WIPO, declare that it will apply the provisions of paragraph (1) only in respect of certain uses, or that it will limit their application in some other way, or that it will not apply these provisions at all.

    41

    (4)      For the purposes of this Article, phonograms made available to the public by wire or wireless means in such a way that members of the public may access them from a place and at a time individually chosen by them shall be considered as if they had been published for commercial purposes.’

    42

     European Union law

    43

    6        According to recitals 5, 7 and 16 of the preamble to Directive 2006/115:

    44

    ‘(5)      The creative and artistic work of authors and performers necessitates an adequate income as a basis for further creative and artistic work, and the investments required particularly for the production of phonograms and films are especially high and risky. The possibility of securing that income and recouping that investment can be effectively guaranteed only through adequate legal protection of the rightholders concerned.

    45

    46

    (7)      The legislation of the Member States should be approximated in such a way as not to conflict with the international conventions on which the copyright and related rights laws of many Member States are based.

    47

    48

    (16)      Member States should be able to provide for more far-reaching protection for owners of rights related to copyright than that required by the provisions laid down in this Directive in respect of broadcasting and communication to the public.’

    49

    7        Article 7 of Directive 2006/115 provides:

    50

    ‘1.      Member States shall provide for performers the exclusive right to authorise or prohibit the fixation of their performances.

    51

    2.      Member States shall provide for broadcasting organisations the exclusive right to authorise or prohibit the fixation of their broadcasts, whether these broadcasts are transmitted by wire or over the air, including by cable or satellite.

    52

    3.      A cable distributor shall not have the right provided for in paragraph 2 where it merely retransmits by cable the broadcasts of broadcasting organisations.’

    53

    8        Article 8(2) of that directive provides:

    54

    ‘Member States shall provide a right in order to ensure that a single equitable remuneration is paid by the user, if a phonogram published for commercial purposes, or a reproduction of such phonogram, is used for broadcasting by wireless means or for any communication to the public, and to ensure that this remuneration is shared between the relevant performers and phonogram producers. Member States may, in the absence of agreement between the performers and phonogram producers, lay down the conditions as to the sharing of this remuneration between them.’

    55

    9        Article 10 of that directive is worded as follows:

    56

    ‘1.      Member States may provide for limitations to the rights referred to in this Chapter in respect of:

    57

    (a)      private use;

    58

    59

    2.      Irrespective of paragraph 1, any Member State may provide for the same kinds of limitations with regard to the protection of performers, producers of phonograms, broadcasting organisations and of producers of the first fixations of films, as it provides for in connection with the protection of copyright in literary and artistic works.

    60

    However, compulsory licences may be provided for only to the extent to which they are compatible with the Rome Convention.

    61

    3.      The limitations referred to in paragraphs 1 and 2 shall be applied only in certain special cases which do not conflict with a normal exploitation of the subject matter and do not unreasonably prejudice the legitimate interests of the rightholder.’

    62

    10      Directive 2006/115 codified and repealed Council Directive 92/100/EEC of 19 November 1992 on rental right and lending right and on certain rights related to copyright in the field of intellectual property (OJ 1992 L 346, p. 61).

    63

    11      According to recital 9 of the preamble to Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (OJ 2001 L 167, p. 10):

    64

    ‘Any harmonisation of copyright and related rights must take as a basis a high level of protection, since such rights are crucial to intellectual creation. Their protection helps to ensure the maintenance and development of creativity in the interests of authors, performers, producers, consumers, culture, industry and the public at large. Intellectual property has therefore been recognised as an integral part of property.’

    65

    12      Article 3 of that directive states:

    66

    ‘1.      Member States shall provide authors with the exclusive right to authorise or prohibit any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them.

    67

    2.      Member States shall provide for the exclusive right to authorise or prohibit the making available to the public, by wire or wireless means, in such a way that members of the public may access them from a place and at a time individually chosen by them:

    68

    (a)      for performers, of fixations of their performances;

    69

    (b)      for phonogram producers, of their phonograms;

    70

    (c)       for the producers of the first fixations of films, of the original and copies of their films;

    71

    (d)      for broadcasting organisations, of fixations of their broadcasts, whether these broadcasts are transmitted by wire or over the air, including by cable or satellite.

    72

    3.      The rights referred to in paragraphs 1 and 2 shall not be exhausted by any act of communication to the public or making available to the public as set out in this Article.’

    73

     National law

    74

    13      The Copyright and Related Rights Act 2000, (‘the 2000 Act’) provides in Section 97:

    75

    ‘1.       Subject to subsection (2), it is not an infringement of the copyright in a sound recording, broadcast or cable programme to cause a sound recording, broadcast or cable programme to be heard or viewed where it is heard or viewed:

    76

    (a)       in part of the premises where sleeping accommodation is provided for the residents or inmates, and

    77

    (b)      as part of the amenities provided exclusively or mainly for residents or inmates.

    78

    2.      Subsection (1) does not apply in respect of any part of premises to which subsection (1) applies where there is a discrete charge made for admission to the part of the premises where a sound recording, broadcast or cable programme is to be heard or viewed.’

    79

     The dispute in the main proceedings and the questions referred for a preliminary ruling

    80

    14      PPL is a collecting society which represents the rights which phonogram producers hold over sound recordings or phonograms in Ireland.

    81

    15      The main proceedings concern an action brought by PPL against Ireland for a declaration that Ireland, in adopting and maintaining in force Section 97 of the Act of 2000, has acted in breach of Article 4 TEU and for damages for that breach.

    82

    16      PPL alleges that it was on the ground of the exemption from liability provided for by Section 97(1) of the Act of 2000 that the operators of hotels and guesthouses (collectively ‘hotels’) did not pay equitable remuneration to it for the use, in hotel bedrooms in Ireland, of phonograms included amongst those made available under licence to PPL, by means of apparatus provided by persons responsible for the operation of those hotels as part of the service they provide.

    83

    17      The exemption from liability for hoteliers broadcasting protected phonograms infringes certain European directives adopted in the area of rights related to copyright, which provide for the right of phonogram producers to equitable remuneration when their phonograms are used under certain circumstances.

    84

    18      The High Court (Commercial Division) makes clear that the main proceedings concern only sound recordings or phonograms heard by guests in hotel bedrooms in Ireland and not in other parts of those establishments. Nor do the proceedings concern the use by hotel guests of transmissions which are interactive or on-demand.

    85

    19      Moreover, according to the referring court, if a hotel in Ireland provides televisions or radios in its bedrooms and, by cable or other technology, distributes to those televisions and radios a signal received centrally, then that hotel is not required by reason of Section 97(1) of the Act of 2000 to make any payment of equitable remuneration to phonogram producers for sound recordings included in TV or radio broadcasts.

    86

    20      Similarly, if a hotel places in its bedrooms other apparatus and makes available sound recordings in physical or digital form which may be played by guests thereon, that hotel is, likewise, not obliged to pay equitable remuneration to phonogram producers by reason of Section 97(1) of the Act of 2000.

    87

    21      Moreover, whilst the claim in the main proceedings only relates to use of sound recordings in hotel bedrooms, the referring court points out that Section 97(1) of the Act of 2000 also has the effect of removing the requirement of equitable remuneration for such use in hospitals, nursing homes, residential care facilities, prisons and all other similar institutions.

    88

    22      Finally, it makes clear that the sound recordings at issue in the proceedings are phonograms published for commercial purposes.

    89

    23      Against that background, the referring court took the view that, having regard to the differences between the rights protected by Article 3(1) of Directive 2001/29 and Article 8(2) of Directive 2006/115, to the context in which the phrase ‘communication to the public’ is used in each, and the purpose of the respective provisions, that court should not apply to the concept ‘communication to the public’ the same meaning as the Court of Justice gave it in Case C‑306/05 SGAE [2006] ECR I‑11519).

    90

    24      It is in those circumstances that the High Court (Commercial Division) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:

    91

    ‘(1)      Is a hotel operator which provides in guest bedrooms televisions and/or radios to which it distributes a broadcast signal a “user” making a “communication to the public” of a phonogram which may be played in a broadcast for the purposes of Article 8(2) of Codified Directive 2006/115/EC …?

    92

    (2)      If the answer to paragraph (1) is in the affirmative, does Article 8(2) of Directive 2006/115/EC … oblige Member States to provide a right to payment of equitable remuneration from the hotel operator in addition to equitable remuneration from the broadcaster for the playing of the phonogram?

    93

    (3)      If the answer to paragraph (1) is in the affirmative, does Article 10 of Directive 2006/115/EC … permit Member States to exempt hotel operators from the obligation to pay “single equitable remuneration” on the grounds of “private use” within the meaning of Article 10(1)(a)?

    94

    (4)      Is a hotel operator which provides in a guest bedroom apparatus (other than a television or radio) and phonograms in physical or digital form which may be played on or heard from such apparatus a “user” making a “communication to the public” of the phonograms within the meaning of Article 8(2) of Directive 2006/115/EC …?

    95

    (5)      If the answer to paragraph (4) is in the affirmative, does Article 10 of Directive 2006/115/EC … permit Member States to exempt hotel operators from the obligation to pay “a single equitable remuneration” on the grounds of “private use” within the meaning of Article 10(1)(a) of Directive 2006/115/EC?’

    96

     The questions referred for a preliminary ruling

    97

     The first question

    98

    25      By its first question, the referring court essentially wishes to know whether a hotel operator which provides in guest bedrooms televisions and/or radios to which it distributes a broadcast signal a ‘user’ making a ‘communication to the public’ of a broadcast phonogram for the purposes of Article 8(2) of Directive 2006/115/EC.

    99

    26      As a preliminary point, it must be borne in mind that, under Article 8(2) of Directive 2006/115, Member States are to provide a right in order to ensure that a single equitable remuneration is paid by the user, if a phonogram published for commercial purposes, or a reproduction of such phonogram, is used for broadcasting by wireless means or for any communication to the public.

    100

    27      It follows from that provision that anyone who uses a phonogram for a broadcast or for communication to the public must be considered to be a ‘user’ for the purposes of that provision.

    101

    28      In those circumstances, it must be assessed whether, in a case such as that at issue in the main proceedings, there has been ‘communication to the public’.

    102

    29      As regards the concept of ‘communication to the public’ within the meaning of Article 8(2) of Directive 92/100, codified by Directive 2006/115, the Court held in Case C‑135/10 SCF ECR [2012], paragraph 76, that it requires an individual assessment. The same applies as regards the identity of the user and the question of the use of the phonogram at issue (SCF, paragraph 78).

    103

    30      Moreover, the Court made clear that, for the purposes of such an assessment, account has to be taken of several complementary criteria, which are not autonomous and are interdependent. Consequently, they must be applied individually and in their interaction with one another, given that they may, in different situations, be present to widely varying degrees (see SCF, paragraph 79).

    104

    31      Of those criteria, the Court emphasised, first and foremost, the indispensable role played by the user. The user makes an act of communication when it intervenes, in full knowledge of the consequences of its action, to give access to a broadcast containing the protected work to its customers. In the absence of that intervention, its customers, although physically within the area covered by the broadcast, would not, in principle, be able to enjoy the broadcast work (SCF, paragraph 82).

    105

    32      Second, the Court clarified certain aspects of the concept of ‘public’.

    106

    33      According to the Court, the term ‘public’ refers to an indeterminate number of potential listeners and a fairly large number of people (see, to that effect, SCF, paragraph 84).

    107

    34      As regards, to begin with, the ‘indeterminate’ nature of the public, the Court has observed that, according to the definition of the concept of ‘communication to the public’ given by the WIPO glossary, which, while not legally binding, none the less sheds light on the interpretation of the concept of public, it means ‘making a work … perceptible in any appropriate manner to persons in general, that is, not restricted to specific individuals belonging to a private group’ (SCF, paragraph 85).

    108

    35      Next, as regards, the criterion of ‘a fairly large number of people’, the Court has made clear that this is intended to indicate that, on the one hand, the concept of public encompasses a certain de minimis threshold, which excludes from the concept groups of persons which are too small, or insignificant (SCF, paragraph 86). On the other hand, in order to determine that number, account must be taken of the cumulative effects of making works available to potential audiences. In that connection, not only is it relevant to know how many persons have access to the same work at the same time but it is also necessary to know how many of them have access to it in succession (SCF, paragraphs 86 and 87).

    109

    36      Third, the Court has held that if it is relevant that a ‘communication’ within the meaning of Article 3(1) of Directive 2001/29 is of a profit-making nature, this must be all the more true in the case of the essentially economic right to equitable remuneration of the performers and phonogram producers under Article 8(2) of Directive 2006/115 (see, to that effect, SCF, paragraphs 88 and 89).

    110

    37      According to the Court, it is thus understood that the public which is the subject of the communication is both targeted by the user and receptive, in one way or another, to that communication, and not merely ‘caught’ by chance (SCF, paragraph 91).

    111

    38      It is in the light, inter alia, of those criteria and in accordance with the need for an individual assessment established in paragraph 29 of this judgment that it must be assessed whether, in a case such as that at issue in the main proceedings, a hotel operator which provides in guest bedrooms televisions and/or radios to which it distributes a broadcast signal is making a communication to the public within the meaning of Article 8(2) of Directive 2006/115.

    112

    39      Although it is, in principle, for the national courts to determine whether that is the situation in a particular case and to make all definitive findings of fact in that regard, it must none the less be held that the Court has all the evidence necessary in relation to the case in the main proceedings to assess whether there is such an act of communication to the public.

    113

    40      It must be observed, first, that in the situation contemplated by the referring court, in which a hotel operator provides in guest bedrooms televisions and/or radios to which it distributes a broadcast signal, just as in the case leading to the judgment in SGAE (paragraph 42), although the guests of a hotel are in the area covered by the signal conveying the phonograms, they are able to listen to those phonograms only as a result of the deliberate intervention of that operator. Its role is thus indispensable, within the meaning of paragraph 31 of the present judgment.

    114

    41      As regards, next, the guests of a hotel such as those at issue in the main proceedings, it must be observed that they constitute an indeterminate number of potential listeners, insofar as the access of those guests to the services of that establishment is the result of their own choice and is limited only by the capacity of the establishment in question. In such a situation they are thus ‘persons in general’ in the sense of paragraph 34 of this judgment.

    115

    42      As regards, further, the number of potential listeners referred to in paragraph 33 of the present judgment, it must be observed that the Court has held that the guests of a hotel constitute a fairly large number of persons, such that they must be considered to be a public (SGAE, paragraph 38).

    116

    43      Finally, as regards the profit-making nature of the broadcast referred to in paragraphs 36 and 37 of this judgment, it must be held that the guests of a hotel may be described as ‘targeted’ and ‘receptive’.

    117

    44      Indeed, the action of the hotel by which it gives access to the broadcast work to its customers constitutes an additional service which has an influence on the hotel’s standing and, therefore, on the price of rooms (see, to that effect, SGAE, paragraph 44). Moreover, it is likely to attract additional guests who are interested in that additional service (see, by analogy, Joined Cases C‑403/08 and C‑429/08 Football Association Premier League and Others [2011] ECR I‑9083, paragraph 205).

    118

    45      It follows that, in the present case, the broadcasting of phonograms by a hotel operator is of a profit-making nature.

    119

    46      It follows from the foregoing considerations that, in a case such as that in the main proceedings, a hotel operator is making a ‘communication to the public’ within the meaning of Article 8(2) of Directive 2006/115.

    120

    47      Having regard to the foregoing, the answer to the first question is that a hotel operator which provides in guest bedrooms televisions and/or radios to which it distributes a broadcast signal is a ‘user’ making a ‘communication to the public’ of a phonogram which may be played in a broadcast for the purposes of Article 8(2) of Directive 2006/115.

    121

     The second question

    122

    48      By its second question the referring court asks, essentially, whether a hotel operator which provides in guest bedrooms televisions and/or radios to which it distributes a broadcast signal is obliged to pay equitable remuneration under Article 8(2) of Directive 2006/115 in addition to that paid by the broadcaster.

    123

    49      It should be recalled, at the outset, that the Court has already made clear, as regards the concept of ‘communication to the public’ for the purposes of Article 3(1) of Directive 2001/29, that a hotel operator which carries out an act of communication to the public transmits a protected work to a new public, that is to say, to a public which was not taken into account by the authors of the protected work when they authorised its use by communication to the original public (see, to that effect, SGAE paragraphs 40 and 42).

    124

    50      It must be pointed out that the notion of ‘new public’ derived from the case‑law cited in the previous paragraph must also be taken into account in the context of the application of Article 8(2) of Directive 2006/115.

    125

    51      When a hotel operator communicates a broadcast phonogram in its guest bedrooms, it is using that phonogram in an autonomous way and transmitting it to a public which is distinct from and additional to the one targeted by the original act of communication. Moreover, as observed in paragraph 45 of the present judgment, the hotel operator derives economic benefits from that transmission which are independent of those obtained by the broadcaster or the producer of the phonograms.

    126

    52      Consequently, in such a situation, a hotel operator is required, under Article 8(2) of Directive 2006/115, to pay equitable remuneration for the communication to the public of that phonogram in addition to that paid by the broadcaster.

    127

    53      In that respect, Ireland’s argument that it follows from the words ‘or’ and ‘single’ in Article 8(2) of Directive 2006/115 that a hotel operator is not required to pay any remuneration for the indirect communication of phonograms to the public if a radio or television broadcaster has already paid equitable remuneration for the use of the phonograms in its broadcasts cannot succeed.

    128

    54      By using the word ‘single’ in that provision, the European Union legislature merely wished to make clear that it is not necessary for the Member States to make provision for the user to pay separate remuneration several times for the same act of communication to the public, as that single remuneration will, as is clear from the second sentence of that provision, be shared amongst the different beneficiaries of the equitable remuneration, that is to say, the performers and the phonogram producers. The conjunction ‘or’ in the expression ‘by wireless means or for any communication to the public’ must be interpreted as meaning that remuneration is due both in the case of a broadcast and in the case of communication to the public.

    129

    55      Having regard to the foregoing observations, the answer to the second question is that a hotel operator which provides in guest bedrooms televisions and/or radios to which it distributes a broadcast signal is obliged to pay equitable remuneration under Article 8(2) of Directive 2006/115 for the broadcast of a phonogram, in addition to that paid by the broadcaster.

    130

     The fourth question

    131

    56      By its fourth question, which should be examined third, the referring court asks, essentially, whether a hotel operator which provides in guest bedrooms, not televisions and/or radios, but other apparatus and phonograms in physical or digital format capable of being broadcast or heard by means of that apparatus, is a ‘user’ making a ‘communication to the public’ of a phonogram, for the purposes of Article 8(2) of Directive 2006/115.

    132

    57      In those circumstances, the Court is required to verify that the considerations underlying its reply to the first question are still relevant even in a situation where a hotel operator provides apparatus for his clients other than a television or radio, and phonograms in a physical or digital format capable of being broadcast or heard by means of that apparatus.

    133

    58      In that regard, it must be pointed out that the concept of ‘communication to the public’ in Article 8(2) of Directive 2006/115 must be interpreted with due regard for the equivalent concepts used, inter alia, by the WPPT, and in a manner compatible with those concepts, and taking account of the context in which they are used and the objective pursued by the relevant provisions of conventions (SCF, paragraph 55).

    134

    59      Article 2(g) of the WPPT, concerning communication to the public and referring to Article 15 of the WPPT stipulates that such communication includes making the sounds or representations of sounds fixed in a phonogram audible to the public.

    135

    60      In those circumstances, the concept of ‘communication to the public’ in Article 8(2) of Directive 2006/115 must be interpreted as meaning that it also includes making the sounds or representations of sounds fixed in a phonogram audible to the public.

    136

    61      Moreover, that finding is borne out by the wording itself of Article 8(2) of Directive 2006/115 which states that it concerns ‘any’ communication to the public, and thus all forms of communication which can be envisaged and carried out.

    137

    62      So, a hotel operator which provides in guest bedrooms apparatus other than a television or radio, and phonograms in a physical or digital format capable of being broadcast or heard by means of that apparatus, is providing the two elements making it possible to make the sounds or representations of sounds fixed in a phonogram audible to the public, that is to say, phonograms.

    138

    63      Consequently, that form of communication falls within the scope of Article 8(2) of Directive 2006/115 interpreted in the light of Articles 2(g) and 15 of the WPPT read together.

    139

    64      Since, as is clear from paragraph 57 of this judgment, the fourth question differs from the first only as regards the form of transmission of the phonograms, it may be inferred that the operator and his customers are the same for the purposes of those two questions.

    140

    65      It may thus be presumed, first, that the operator of that hotel must be considered to be the ‘user’ for the purposes of Article 8(2) of Directive 2006/115 and, second, that the customers of that establishment must be considered to be a ‘public’ for the purposes of that provision, unless there is specific evidence which is such as to lead the Court to a different conclusion.

    141

    66      In that regard it must be assessed whether the particular form of transmission, by apparatus and by phonograms in physical or digital form which can be broadcast or heard by means of that apparatus, is such as to lead to a different conclusion from that reached in paragraph 40 of this judgment.

    142

    67      That is not the case. Since a hotel operator which installs such apparatus and such phonograms in the bedrooms of its hotel thereby provides its customers with the two elements necessary to enjoy the works in question, it follows that, without its intervention, the customers would not have access to those works. The role of that hotel operator is thus indispensable.

    143

    68      In the absence of any other specific evidence requiring examination, it must be concluded that, in a situation like that at issue in the main proceedings, there has been an act of ‘communication to the public’ of a phonogram, for the purposes of Article 8(2) of Directive 2006/115.

    144

    69      Having regard to the foregoing, the answer to the fourth question is that a hotel operator which provides in guest bedrooms, not televisions and/or radios to which it distributes a broadcast signal, but other apparatus and phonograms in physical or digital form which may be played on or heard from such apparatus, is a ‘user’ making a ‘communication to the public’ of a phonogram within the meaning of Article 8(2) of Directive 2006/115/EC. It is therefore obliged to pay ‘equitable remuneration’ under that provision for the transmission of those phonograms.

    145

     The third and fifth questions

    146

    70      By its third and fifth questions, which should be examined together, the referring court asks, essentially, whether Article 10(1)(a) of Directive 2006/115, which provides for a limitation of the right to equitable remuneration in the case of ‘private use’, allows the Member States to exempt a hotel operator who makes a ‘communication to the public’ of a phonogram, within the meaning of Article 8(2) of that directive, from the obligation to pay such remuneration.

    147

    71      As a preliminary point, it must be made clear that, as the Advocate General observed in point 153 of her Opinion, it is not the private nature or otherwise of the use of the work by guests of a hotel which is relevant in order to determine whether a hotel operator may rely on the limitation based on ‘private use’ within the meaning of Article 10(1)(a) of Directive 2006/115, but whether the use made of the work by the operator himself is private or not.

    148

    72      However, the ‘private use’ of a protected work communicated to the public by its user constitutes a contradiction in terms, since ‘public’ is, by definition, ‘not private’.

    149

    73      Accordingly, in the case of a communication to the public within the meaning of Article 8(2) of Directive 2006/115, the limitation based on ‘private use’ within the meaning of Article 10(1)(a) of that directive, cannot apply.

    150

    74      However, that interpretation is not such as to deprive that provision of all practical effect. Rather, that provision retains a wider scope by covering uses other than communication to the public, such as ‘fixation’ within the meaning of Article 7 of that directive.

    151

    75      Moreover, to allow the user to benefit from the limitation referred to in Article 10(1)(e) of Directive 2006/115, when he makes a communication such as that at issue in the case in the main proceedings, would run counter to the provisions of Article 10(3) of that directive under which that limitation is applicable only in certain special cases which do not prejudice the normal exploitation of the work or other protected object or cause unjustified harm to the legitimate interests of the rightholder.

    152

    76      Such an interpretation would allow the user to evade the obligation to pay equitable remuneration for forms of use of the work which amount to commercial exploitation of it, which would cause unjustified harm to the legitimate interests of protected artists or performers precisely as a result of the right to equitable remuneration.

    153

    77      Having regard to the foregoing, the answer to the third and fifth questions is that Article 10(1)(a) of Directive 2006/115, which provides for a limitation to the right to equitable remuneration provided for by Article 8(2) of that directive in the case of ‘private use’, does not allow Member States to exempt a hotel operator which makes a ‘communication to the public’ of a phonogram, within the meaning of Article 8(2) of that directive, from the obligation to pay such remuneration.

    154

     Costs

    155

    78      Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

    156

    On those grounds, the Court (Third Chamber) hereby rules:

    157

    1.      A hotel operator which provides in guest bedrooms televisions and/or radios to which it distributes a broadcast signal is a ‘user’ making a ‘communication to the public’ of a phonogram which may be played in a broadcast for the purposes of Article 8(2) of Directive 2006/115/EC of the European Parliament and of the Council of 12 December 2006 on rental right and lending right and on certain rights related to copyright in the field of intellectual property.

    158

    2.      A hotel operator which provides in guest bedrooms televisions and/or radios to which it distributes a broadcast signal is obliged to pay equitable remuneration under Article 8(2) of Directive 2006/115 for the broadcast of a phonogram, in addition to that paid by the broadcaster.

    159

    3.      A hotel operator which provides in guest bedrooms, not televisions and/or radios to which it distributes a broadcast signal, but other apparatus and phonograms in physical or digital form which may be played on or heard from such apparatus, is a ‘user’ making a ‘communication to the public’ of a phonogram within the meaning of Article 8(2) of Directive 2006/115/EC. It is therefore obliged to pay ‘equitable remuneration’ under that provision for the transmission of those phonograms.

    160

    4.      Article 10(1)(a) of Directive 2006/115, which provides for a limitation to the right to equitable remuneration provided for by Article 8(2) of that directive in the case of ‘private use’, does not allow Member States to exempt a hotel operator which makes a ‘communication to the public’ of a phonogram, within the meaning of Article 8(2) of that directive, from the obligation to pay such remuneration.

  • 4 Nils Svensson et al v Retriever Sverige AB, C-466/12, February 13, 2014 (ECJ) (communication to the public, linking)

    1

    JUDGMENT OF THE COURT (Fourth Chamber)

    2

    13 February 2014 (*)

    3

    (Reference for a preliminary ruling – Approximation of laws – Copyright and related rights – Directive 2001/29/EC – Information society – Harmonisation of certain aspects of copyright and related rights – Article 3(1) – Communication to the public – Meaning – Internet links (‘clickable links’) giving access to protected works)

    4

    In Case C‑466/12,

    5

    REQUEST for a preliminary ruling under Article 267 TFEU from the Svea hovrätt (Sweden), made by decision of 18 September 2012, received at the Court on 18 October 2012, in the proceedings

    6

    Nils Svensson,

    7

    Sten Sjögren,

    8

    Madelaine Sahlman,

    9

    Pia Gadd

    10

    v

    11

    Retriever Sverige AB,

    12

    THE COURT (Fourth Chamber),

    13

    composed of L. Bay Larsen, President of the Chamber, M. Safjan, J. Malenovský (Rapporteur), A. Prechal and S. Rodin, Judges,

    14

    Advocate General: E. Sharpston,

    15

    Registrar: C. Strömholm, Administrator,

    16

    having regard to the written procedure and further to the hearing on 7 November 2013,

    17

    after considering the observations submitted on behalf of:

    18

    –        Mr Svensson, Mr Sjögren and Ms Sahlman, by O. Wilöf, förbundsjurist,

    19

    –        Ms Gadd, by R. Gómez Cabaleiro, abogado, and M. Wadsted, advokat,

    20

    –        Retriever Sverige AB, by J. Åberg, M. Bruder and C. Rockström, advokater,

    21

    –        the French Government, by D. Colas, F.-X. Bréchot and B. Beaupère-Manokha, acting as Agents,

    22

    –        the Italian Government, by G. Palmieri, acting as Agent, and by S. Fiorentino, avvocato dello Stato,

    23

    –        the United Kingdom Government, by J. Beeko, acting as Agent, and by N. Saunders, Barrister,

    24

    –        the European Commission, by J. Samnadda and J. Enegren, acting as Agents,

    25

    having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

    26

    gives the following

    27

    Judgment

    28

    1        This request for a preliminary ruling concerns the interpretation of Article 3(1) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (OJ 2001 L 167, p. 10).

    29

    2        The request has been made in proceedings between Mr Svensson, Mr Sjögren, Ms Sahlman and Ms Gadd, the applicants in the main proceedings, and Retriever Sverige AB (‘Retriever Sverige’) concerning compensation allegedly payable to them for the harm they consider they have suffered as a result of the inclusion on that company’s website of clickable Internet links (hyperlinks) redirecting users to press articles in which the applicants hold the copyright.

    30

     Legal context

    31

     International law

    32

     The WIPO Copyright Treaty

    33

    3        The World Intellectual Property Organisation (WIPO) adopted the WIPO Copyright Treaty (‘the WIPO Copyright Treaty’) in Geneva on 20 December 1996. It was approved on behalf of the European Community by Council Decision 2000/278/EC of 16 March 2000 (OJ 2000 L 89, p. 6).

    34

    4        Article 1(4) of the WIPO Copyright Treaty provides that the contracting parties are to comply with Articles 1 to 21 of the Convention for the Protection of Literary and Artistic Works, signed at Berne on 9 September 1886 (Paris Act of 24 July 1971), as amended on 28 September 1979 (‘the Berne Convention’).

    35

     The Berne Convention

    36

    5        Article 20 of the Berne Convention, entitled ‘Special Agreements Among Countries of the Union’, states:

    37

    ‘The Governments of the countries of the Union reserve the right to enter into special agreements among themselves, in so far as such agreements grant to authors more extensive rights than those granted by the Convention, or contain other provisions not contrary to this Convention. The provisions of existing agreements which satisfy these conditions shall remain applicable.’

    38

     European Union law

    39

    6        Recitals 1, 4, 6, 7, 9 and 19 in the preamble to Directive 2001/29 state:

    40

    ‘(1)      The Treaty provides for the establishment of an internal market and the institution of a system ensuring that competition in the internal market is not distorted. Harmonisation of the laws of the Member States on copyright and related rights contributes to the achievement of these objectives.

    41

    42

    (4)      A harmonised legal framework on copyright and related rights, through increased legal certainty and while providing for a high level of protection of intellectual property, will foster substantial investment in creativity and innovation, including network infrastructure, and lead in turn to growth and increased competitiveness of European industry, both in the area of content provision and information technology and more generally across a wide range of industrial and cultural sectors. …

    43

    44

    (6)      Without harmonisation at Community level, legislative activities at national level which have already been initiated in a number of Member States in order to respond to the technological challenges might result in significant differences in protection and thereby in restrictions on the free movement of services and products incorporating, or based on, intellectual property, leading to a refragmentation of the internal market and legislative inconsistency. The impact of such legislative differences and uncertainties will become more significant with the further development of the information society, which has already greatly increased transborder exploitation of intellectual property. This development will and should further increase. Significant legal differences and uncertainties in protection may hinder economies of scale for new products and services containing copyright and related rights.

    45

    (7)      The Community legal framework for the protection of copyright and related rights must, therefore, also be adapted and supplemented as far as is necessary for the smooth functioning of the internal market. To that end, those national provisions on copyright and related rights which vary considerably from one Member State to another or which cause legal uncertainties hindering the smooth functioning of the internal market and the proper development of the information society in Europe should be adjusted, and inconsistent national responses to the technological developments should be avoided, whilst differences not adversely affecting the functioning of the internal market need not be removed or prevented.

    46

    47

    (9)      Any harmonisation of copyright and related rights must take as a basis a high level of protection, since such rights are crucial to intellectual creation. Their protection helps to ensure the maintenance and development of creativity in the interests of authors, performers, producers, consumers, culture, industry and the public at large. …

    48

    (19)      The moral rights of rightholders should be exercised according to the legislation of the Member States and the provisions of the Berne Convention …[,] the WIPO Copyright Treaty and of the WIPO Performances and Phonograms Treaty. …’

    49

    7        Article 3 of Directive 2001/29 provides:

    50

    ‘1.   Member States shall provide authors with the exclusive right to authorise or prohibit any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them.

    51

    52

    3.      The rights referred to in paragraphs 1 and 2 shall not be exhausted by any act of communication to the public or making available to the public as set out in this Article.’

    53

     The dispute in the main proceedings and the questions referred for a preliminary ruling

    54

    8        The applicants in the main proceedings, all journalists, wrote press articles that were published in the Göteborgs-Posten newspaper and on the Göteborgs-Posten website. Retriever Sverige operates a website that provides its clients, according to their needs, with lists of clickable Internet links to articles published by other websites. It is common ground between the parties that those articles were freely accessible on the Göteborgs-Posten newspaper site. According to the applicants in the main proceedings, if a client clicks on one of those links, it is not apparent to him that he has been redirected to another site in order to access the work in which he is interested. By contrast, according to Retriever Sverige, it is clear to the client that, when he clicks on one of those links, he is redirected to another site.

    55

    9        The applicants in the main proceedings brought an action against Retriever Sverige before the Stockholms tingsrätt (Stockholm District Court) in order to obtain compensation on the ground that that company had made use, without their authorisation, of certain articles by them, by making them available to its clients.

    56

    10      By judgment of 11 June 2010, the Stockholms tingsrätt rejected their application. The applicants in the main proceedings then brought an appeal against that judgment before the Svea hovrätt (Svea Court of Appeal).

    57

    11      Before that court, the applicants in the main proceedings claimed, inter alia, that Retriever Sverige had infringed their exclusive right to make their respective works available to the public, in that as a result of the services offered on its website, Retriever Sverige’s clients had access to the applicants’ works.

    58

    12      Retriever Sverige contends, in defence, that the provision of lists of Internet links to works communicated to the public on other websites does not constitute an act liable to affect the copyright in those works. Retriever Sverige also contends that it did not carry out any transmission of any protected work; its action is limited to indicating to its clients the websites on which the works that are of interest to them are to be found.

    59

    13      In those circumstances, the Svea hovrätt decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

    60

    ‘(1)      If anyone other than the holder of copyright in a certain work supplies a clickable link to the work on his website, does that constitute communication to the public within the meaning of Article 3(1) of Directive [2001/29]?

    61

    (2)      Is the assessment under question 1 affected if the work to which the link refers is on a website on the Internet which can be accessed by anyone without restrictions or if access is restricted in some way?

    62

    (3)      When making the assessment under question 1, should any distinction be drawn between a case where the work, after the user has clicked on the link, is shown on another website and one where the work, after the user has clicked on the link, is shown in such a way as to give the impression that it is appearing on the same website?

    63

    (4)      Is it possible for a Member State to give wider protection to authors’ exclusive right by enabling communication to the public to cover a greater range of acts than provided for in Article 3(1) of Directive 2001/29?’

    64

     Consideration of the questions referred

    65

     The first three questions

    66

    14      By its first three questions, which it is appropriate to examine together, the referring court asks, in essence, whether Article 3(1) of Directive 2001/29 must be interpreted as meaning that the provision, on a website, of clickable links to protected works available on another website constitutes an act of communication to the public as referred to in that provision, where, on that other site, the works concerned are freely accessible.

    67

    15      In this connection, it follows from Article 3(1) of Directive 2001/29 that every act of communication of a work to the public has to be authorised by the copyright holder.

    68

    16      It is thus apparent from that provision that the concept of communication to the public includes two cumulative criteria, namely, an ‘act of communication’ of a work and the communication of that work to a ‘public’ (see, to that effect, Case C‑607/11 ITV Broadcasting and Others [2013] ECR, paragraphs 21 and 31).

    69

    17      As regards the first of those criteria, that is, the existence of an ‘act of communication’, this must be construed broadly (see, to that effect, Joined Cases C‑403/08 and C‑429/08 Football Association Premier League and Others [2011] ECR I‑9083, paragraph 193), in order to ensure, in accordance with, inter alia, recitals 4 and 9 in the preamble to Directive 2001/29, a high level of protection for copyright holders.

    70

    18      In the circumstances of this case, it must be observed that the provision, on a website, of clickable links to protected works published without any access restrictions on another site, affords users of the first site direct access to those works.

    71

    19      As is apparent from Article 3(1) of Directive 2001/29, for there to be an ‘act of communication’, it is sufficient, in particular, that a work is made available to a public in such a way that the persons forming that public may access it, irrespective of whether they avail themselves of that opportunity (see, by analogy, Case C‑306/05 SGAE [2006] ECR I‑11519, paragraph 43).

    72

    20      It follows that, in circumstances such as those in the case in the main proceedings, the provision of clickable links to protected works must be considered to be ‘making available’ and, therefore, an ‘act of communication’, within the meaning of that provision.

    73

    21      So far as concerns the second of the abovementioned criteria, that is, that the protected work must in fact be communicated to a ‘public’, it follows from Article 3(1) of Directive 2001/29 that, by the term ‘public’, that provision refers to an indeterminate number of potential recipients and implies, moreover, a fairly large number of persons (SGAE, paragraphs 37 and 38, and ITV Broadcasting and Others, paragraph 32).

    74

    22      An act of communication such as that made by the manager of a website by means of clickable links is aimed at all potential users of the site managed by that person, that is to say, an indeterminate and fairly large number of recipients.

    75

    23      In those circumstances, it must be held that the manager is making a communication to a public.

    76

    24      None the less, according to settled case-law, in order to be covered by the concept of ‘communication to the public’, within the meaning of Article 3(1) of Directive 2001/29, a communication, such as that at issue in the main proceedings, concerning the same works as those covered by the initial communication and made, as in the case of the initial communication, on the Internet, and therefore by the same technical means, must also be directed at a new public, that is to say, at a public that was not taken into account by the copyright holders when they authorised the initial communication to the public (see, by analogy, SGAE, paragraphs 40 and 42; order of 18 March 2010 in Case C‑136/09 Organismos Sillogikis Diacheirisis Dimiourgon Theatrikon kai Optikoakoustikon Ergon, paragraph 38; and ITV Broadcasting and Others, paragraph 39).

    77

    25      In the circumstances of this case, it must be observed that making available the works concerned by means of a clickable link, such as that in the main proceedings, does not lead to the works in question being communicated to a new public.

    78

    26      The public targeted by the initial communication consisted of all potential visitors to the site concerned, since, given that access to the works on that site was not subject to any restrictive measures, all Internet users could therefore have free access to them.

    79

    27      In those circumstances, it must be held that, where all the users of another site to whom the works at issue have been communicated by means of a clickable link could access those works directly on the site on which they were initially communicated, without the involvement of the manager of that other site, the users of the site managed by the latter must be deemed to be potential recipients of the initial communication and, therefore, as being part of the public taken into account by the copyright holders when they authorised the initial communication.

    80

    28      Therefore, since there is no new public, the authorisation of the copyright holders is not required for a communication to the public such as that in the main proceedings.

    81

    29      Such a finding cannot be called in question were the referring court to find, although this is not clear from the documents before the Court, that when Internet users click on the link at issue, the work appears in such a way as to give the impression that it is appearing on the site on which that link is found, whereas in fact that work comes from another site.

    82

    30      That additional circumstance in no way alters the conclusion that the provision on a site of a clickable link to a protected work published and freely accessible on another site has the effect of making that work available to users of the first site and that it therefore constitutes a communication to the public. However, since there is no new public, the authorisation of the copyright holders is in any event not required for such a communication to the public.

    83

    31      On the other hand, where a clickable link makes it possible for users of the site on which that link appears to circumvent restrictions put in place by the site on which the protected work appears in order to restrict public access to that work to the latter site’s subscribers only, and the link accordingly constitutes an intervention without which those users would not be able to access the works transmitted, all those users must be deemed to be a new public, which was not taken into account by the copyright holders when they authorised the initial communication, and accordingly the holders’ authorisation is required for such a communication to the public. This is the case, in particular, where the work is no longer available to the public on the site on which it was initially communicated or where it is henceforth available on that site only to a restricted public, while being accessible on another Internet site without the copyright holders’ authorisation.

    84

    32      In those circumstances, the answer to the first three questions referred is that Article 3(1) of Directive 2001/29 must be interpreted as meaning that the provision on a website of clickable links to works freely available on another website does not constitute an act of communication to the public, as referred to in that provision.

    85

     The fourth question

    86

    33      By its fourth question, the referring court asks, in essence, whether Article 3(1) of Directive 2001/29 must be interpreted as precluding a Member State from giving wider protection to copyright holders by laying down that the concept of communication to the public includes a wider range of activities than those referred to in that provision.

    87

    34      In this connection, it is apparent, in particular, from recitals 1, 6 and 7 in the preamble to Directive 2001/29 that the objectives of the directive are, inter alia, to remedy the legislative differences and legal uncertainty that exist in relation to copyright protection. Acceptance of the proposition that a Member State may give wider protection to copyright holders by laying down that the concept of communication to the public also includes activities other than those referred to in Article 3(1) of Directive 2001/29 would have the effect of creating legislative differences and thus, for third parties, legal uncertainty.

    88

    35      Consequently, the objective pursued by Directive 2001/29 would inevitably be undermined if the concept of communication to the public were to be construed in different Member States as including a wider range of activities than those referred to in Article 3(1) of that directive.

    89

    36      It is true that recital 7 in the preamble to the directive indicates that the directive does not have the objective of removing or preventing differences that do not adversely affect the functioning of the internal market. Nevertheless, it must be observed that, if the Member States were to be afforded the possibility of laying down that the concept of communication to the public includes a wider range of activities than those referred to in Article 3(1) of the directive, the functioning of the internal market would be bound to be adversely affected.

    90

    37      It follows that Article 3(1) of Directive 2001/29 cannot be construed as allowing Member States to give wider protection to copyright holders by laying down that the concept of communication to the public includes a wider range of activities than those referred to in that provision.

    91

    38      Such a conclusion is not affected by the fact, highlighted by the applicants in the main proceedings in their written observations, that Article 20 of the Berne Convention stipulates that the signatory countries may enter into ‘special agreements’ among themselves with a view to granting copyright holders more extensive rights than those laid down in that Convention.

    92

    39      In this connection, suffice it to recall that, when an agreement allows, but does not require, a Member State to adopt a measure which appears to be contrary to Union law, the Member State must refrain from adopting such a measure (Case C‑277/10 Luksan [2012] ECR, paragraph 62).

    93

    40      Since the objective of Directive 2001/29 would inevitably be undermined if the concept of communication to the public were construed as including a wider range of activities than those referred to in Article 3(1) of that directive, a Member State must refrain from exercising the right granted to it by Article 20 of the Berne Convention.

    94

    41      Therefore, the answer to the fourth question is that Article 3(1) of Directive 2001/29 must be interpreted as precluding a Member State from giving wider protection to copyright holders by laying down that the concept of communication to the public includes a wider range of activities than those referred to in that provision.

    95

     Costs

    96

    42      Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

    97

    On those grounds, the Court (Fourth Chamber) hereby rules:

    98

    1.      Article 3(1) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, must be interpreted as meaning that the provision on a website of clickable links to works freely available on another website does not constitute an ‘act of communication to the public’, as referred to in that provision.

    99

    2.      Article 3(1) of Directive 2001/29 must be interpreted as precluding a Member State from giving wider protection to copyright holders by laying down that the concept of communication to the public includes a wider range of activities than those referred to in that provision.

  • 5 Svensson (SUMMARY)

    1

    Case C‑466/12

    2

    Nils Svensson and Others

    3

    v

    4

    Retriever Sverige AB

    5

    (Request for a preliminary ruling from the Svea hovrätt)

    6

    (Reference for a preliminary ruling — Approximation of laws — Copyright and related rights — Directive 2001/29/EC — Information society — Harmonisation of certain aspects of copyright and related rights — Article 3(1) — Communication to the public — Meaning — Internet links (‘clickable links’) giving access to protected works)

    7

    Summary — Judgment of the Court (Fourth Chamber), 13 February 2014

    8

    1.        Approximation of laws — Copyright and related rights — Directive 2001/29 — Harmonisation of certain aspects of copyright and related rights in the information society — Communication to the public — Meaning — Making available to the public, on a website, of clickable links to works freely available on another website — Not included

    9

    (European Parliament and Council Directive 2001/29, Art. 3(1))

    10

    2.        Approximation of laws — Copyright and related rights — Directive 2001/29 — Harmonisation of certain aspects of copyright and related rights in the information society — Communication to the public — Meaning — Not permissible for Member States to give wider protection to copyright holders by including within the concept of communication to the public a wider range of activities than those referred to in Article 3(1) of Directive 2001/29

    11

    (European Parliament and Council Directive 2001/29, Art. 3(1))

    12

    3.        International agreements — Agreements concluded by the Member States — Agreements preceding a Member State’s accession to the European Union — Agreement allowing a Member State to adopt a measure contrary to EU law — Obligation on the Member State to refrain from adopting such a measure

    13

    (Art. 351 TFEU)

    14

    1.        Article 3(1) of Directive 2001/29 on the harmonisation of certain aspects of copyright and related rights in the information society must be interpreted as meaning that the provision on a website of clickable links to works freely available on another website does not constitute an ‘act of communication to the public’, as referred to in that provision.

    15

    In this connection, the concept of communication to the public includes two cumulative criteria, namely, an ‘act of communication’ of a work and the communication of that work to a ‘public’.

    16

    The provision, on a website, of clickable links to protected works published without any access restrictions on another site, affords users of the first site direct access to those works and must be considered to be ‘making available’ and, therefore, an ‘act of communication’, within the meaning of Article 3(1) of Directive 2001/29. Such an act of communication is aimed at all potential users of the website, that is to say, an indeterminate and fairly large number of recipients.

    17

    None the less, in order to be covered by the concept of ‘communication to the public’, within the meaning of Article 3(1) of Directive 2001/29, a communication concerning the same works as those covered by the initial communication and made, as in the case of the initial communication, on the Internet, and therefore by the same technical means, must also be directed at a new public, that is to say, at a public that was not taken into account by the copyright holders when they authorised the initial communication to the public. Making available the works concerned by means of a clickable link does not lead to the works in question being communicated to a new public.

    18

    In those circumstances, where all the users of another site to whom the works at issue have been communicated by means of a clickable link could access those works directly on the site on which they were initially communicated, without the involvement of the manager of that other site, the users of the site managed by the latter must be deemed to be potential recipients of the initial communication and, therefore, as being part of the public taken into account by the copyright holders when they authorised the initial communication.

    19

    Therefore, since there is no new public, the authorisation of the copyright holders is not required for such a communication to the public.

    20

    (see paras 16, 18, 20, 22, 24, 25, 27, 28, 32, operative part 1)

    21

    2.        Article 3(1) of Directive 2001/29 on the harmonisation of certain aspects of copyright and related rights in the information society must be interpreted as precluding a Member State from giving wider protection to copyright holders by laying down that the concept of communication to the public includes a wider range of activities than those referred to in that provision.

    22

    It is apparent, in particular, from recitals 1, 6 and 7 in the preamble to Directive 2001/29 that the objectives of the directive are, inter alia, to remedy the legislative differences and legal uncertainty that exist in relation to copyright protection. Acceptance of the proposition that a Member State may give wider protection to copyright holders by laying down that the concept of communication to the public also includes activities other than those referred to in Article 3(1) of Directive 2001/29 would have the effect of creating legislative differences and thus, for third parties, legal uncertainty. Consequently, the objective pursued by Directive 2001/29 would inevitably be undermined if the concept of communication to the public were to be construed in different Member States as including a wider range of activities than those referred to in Article 3(1) of that directive.

    23

    Furthermore, it must be observed that, if the Member States were to be afforded the possibility of laying down that the concept of communication to the public includes a wider range of activities than those referred to in Article 3(1) of the directive, the functioning of the internal market would be bound to be adversely affected.

    24

    (see paras 34-36, 41, operative part 2)

    25

    3.        See the text of the decision.

    26

    (see para. 39)

  • 6 Svensson (SUMMARY) - Giancarlo F. Frosio, Freedom of Linking in Europe?, CIS Blog, March 10, 2014

  • 7 C More Entertainment AB v. Linus Sandberg, C-279/12, March 26, 2015 (OPTIONAL)

    1

    JUDGMENT OF THE COURT (Ninth Chamber)

    2

    26 March 2015 (*)

    3

    (Reference for a preliminary ruling — Approximation of laws — Copyright and related rights — Directive 2001/29/EC — Information society — Harmonisation of certain aspects of copyright and related rights — Article 3(2) — Direct broadcast of a sporting fixture on an internet site)

    4

    In Case C‑279/13,

    5

    REQUEST for a preliminary ruling under Article 267 TFEU from the Högsta domstolen (Sweden), made by decision of 15 May 2013, received at the Court on 22 May 2013, in the proceedings

    6

    C More Entertainment AB

    7

    v

    8

    Linus Sandberg,

    9

    THE COURT (Ninth Chamber),

    10

    composed of K. Jürimäe, President of the Chamber, J. Malenovský (Rapporteur) and A. Prechal, Judges,

    11

    Advocate General: E. Sharpston,

    12

    Registrar: A. Calot Escobar,

    13

    having regard to the written procedure,

    14

    after considering the observations submitted on behalf of:

    15

    –        C More Entertainment AB, by P. Bratt and S. Feinsilber, advokater,

    16

    –        Mr Sandberg, by L. Häggström, advokat,

    17

    –        the Finnish Government, by S. Hartikainen, acting as Agent,

    18

    –        the European Commission, by J. Enegren and J. Samnadda, acting as Agents,

    19

    having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

    20

    gives the following

    21

    Judgment

    22

    1        This request for a preliminary ruling concerns the interpretation of Article 3(2) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (OJ 2001 L 167, p. 10).

    23

    2        The request has been made in proceedings between C More Entertainment AB (‘C More Entertainment’) and Mr Sandberg concerning the placing by him on an internet site of clickable links by means of which internet users can gain access to the live broadcast, on another site, of ice hockey games without having to pay the sum asked by the operator of the other site.

    24

     Legal context

    25

     Directive 2001/29

    26

    3        Recitals 1, 7, 20, 23 and 25 of Directive 2001/29 state:

    27

    ‘(1)      The [EC] Treaty provides for the establishment of an internal market and the institution of a system ensuring that competition in the internal market is not distorted. Harmonisation of the laws of the Member States on copyright and related rights contributes to the achievement of these objectives.

    28

    29

    (7)      The Community legal framework for the protection of copyright and related rights must, therefore, also be adapted and supplemented as far as is necessary for the smooth functioning of the internal market. To that end, those national provisions on copyright and related rights which vary considerably from one Member State to another or which cause legal uncertainties hindering the smooth functioning of the internal market and the proper development of the information society in Europe should be adjusted, and inconsistent national responses to the technological developments should be avoided, whilst differences not adversely affecting the functioning of the internal market need not be removed or prevented.

    30

    31

    (20)      This Directive is based on principles and rules already laid down in the Directives currently in force in this area, in particular [Council Directive 92/100/EEC of 19 November 1992 on rental right and lending right and on certain rights related to copyright in the field of intellectual property (OJ 1992 L 346, p. 61), as amended by Council Directive 93/83/EEC of 29 October 1993 (OJ 1993 L 290, p. 9; ‘Directive 92/100’). It] develops those principles and rules and places them in the context of the information society. The provisions of this Directive should be without prejudice to the provisions of those Directives, unless otherwise provided in this Directive.

    32

    33

    (23)      This Directive should harmonise further the author’s right of communication to the public. This right should be understood in a broad sense covering all communication to the public not present at the place where the communication originates. This right should cover any such transmission or retransmission of a work to the public by wire or wireless means, including broadcasting. This right should not cover any other acts.

    34

    35

    (25)      The legal uncertainty regarding the nature and the level of protection of acts of on-demand transmission of copyright works and subject-matter protected by related rights over networks should be overcome by providing for harmonised protection at Community level. It should be made clear that all rightholders recognised by this Directive should have an exclusive right to make available to the public copyright works or any other subject-matter by way of interactive on-demand transmissions. Such interactive on-demand transmissions are characterised by the fact that members of the public may access them from a place and at a time individually chosen by them.’

    36

    4        Article 1 of Directive 2001/29, entitled ‘Scope’, provides in paragraph 2:

    37

    ‘Except in the cases referred to in Article 11, this Directive shall leave intact and shall in no way affect existing Community provisions relating to:

    38

    39

    (b)      rental right, lending right and certain rights related to copyright in the field of intellectual property;

    40

    …’

    41

    5        Article 3 of that directive, entitled ‘Right of communication to the public of works and right of making available to the public other subject-matter’, states:

    42

    ‘1.      Member States shall provide authors with the exclusive right to authorise or prohibit any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them.

    43

    2.      Member States shall provide for the exclusive right to authorise or prohibit the making available to the public, by wire or wireless means, in such a way that members of the public may access them from a place and at a time individually chosen by them:

    44

    45

    (d)      for broadcasting organisations, of fixations of their broadcasts, whether these broadcasts are transmitted by wire or over the air, including by cable or satellite.’

    46

     Directive 2006/115/EC

    47

    6        Directive 92/100, in force at the time of the adoption of Directive 2001/29, was repealed and replaced by Directive 2006/115/EC of the European Parliament and of the Council of 12 December 2006 on rental right and lending right and on certain rights related to copyright in the field of intellectual property (OJ 2006 L 376, p. 28). Directive 2006/115 codifies and reiterates, in terms analogous to those of Directive 92/100, the provisions of that directive.

    48

    7        Under recital 16 in the preamble to Directive 2006/115:

    49

    ‘Member States should be able to provide for more far-reaching protection for owners of rights related to copyright than that required by the provisions laid down in this Directive in respect of broadcasting and communication to the public.’

    50

    8        Article 8 of that directive, entitled ‘Broadcasting and communication to the public’, provides in paragraph 3:

    51

    ‘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.’

    52

    9        Article 12 of Directive 2006/115, entitled ‘Relation between copyright and related rights’, states:

    53

    ‘Protection of copyright-related rights under this Directive shall leave intact and shall in no way affect the protection of copyright.’

    54

     The dispute in the main proceedings and the question referred

    55

    10      C More Entertainment is a pay-TV station which, inter alia, broadcasts live on its internet site, for payment of a fee, ice hockey matches.

    56

    11      In autumn 2007, C More Entertainment broadcast on that internet site a number of ice hockey matches, to which persons interested could have access by paying the sum of SEK 89 (approximately EUR 9.70) per match.

    57

    12      On his internet site, Mr Sandberg created links enabling the paywall put in place by C More Entertainment to be circumvented. Via those links, internet users could thus access the live broadcasts of two ice hockey matches by C More Entertainment on 20 October and 1 November 2007 for free.

    58

    13      Before the first of those matches, C More Entertainment had contacted Mr Sandberg by telephone and asked him to remove the link without success. After that match, C More Entertainment warned Mr Sandberg in a letter that it regarded the placing of those links as an infringement of the company’s rights.

    59

    14      During the second ice hockey match, C More Entertainment equipped the webcast with a technical protection which prevented any access to that broadcast via the links created by Mr Sandberg.

    60

    15      Mr Sandberg was prosecuted before the Hudiksvalls tingsrätt (District Court, Hudiksvall) for offences against the Law (1960:729) on Copyright in Literary and Artistic Works (lagen (1960:729) om upphovsrätt till litterära och konstnärliga verk (‘upphovsrättslagen’)). On 10 November 2010, the accused was found guilty of an infringement of the copyright of which, in the view of that court, C More Entertainment was the holder and was fined and ordered to pay damages and interest to that company.

    61

    16      Both Mr Sandberg and C More Entertainment appealed against that judgment before the Hovrätten för Nedre Norrland (Court of Appeal of Nedre Norrland).

    62

    17      By a decision of 20 June 2011, that court found that no part of the commentators’, cameramen’s or picture producers’ work on the broadcasts of the ice hockey matches, taken on its own merits or some or all of those parts taken together, reached the level of originality required for copyright protection under the upphovsrättslagen. Next, it held that, as regards the broadcasts at issue in the main proceedings, C More Entertainment was not the holder of a copyright, but of related rights, which had been infringed. Consequently, that court ordered Mr Sandberg to pay fines higher than those imposed at first instance, but slightly reduced the compensation awarded to C More Entertainment.

    63

    18      C More Entertainment brought an appeal against that judgment before the Högsta domstolen (Supreme Court), seeking a declaration that it is the holder of copyright and to have the amount of damages due to it reviewed and increased.

    64

    19      That court took the view that it does not follow from either the wording of Directive 2001/29 or the case-law of the Court that the insertion of a hypertext link on an internet site constitutes an act of communication to the public. In addition, that court noted that the relevant national legislation provides for wider related rights than those set out in Article 3(2) of Directive 2001/29 since, unlike that provision, the protection conferred by Swedish law is not restricted to acts of making works available ‘on demand’. In those circumstances, the Högsta domstolen decided to stay the proceedings and to refer five questions to the Court for a preliminary ruling.

    65

    20      By a letter of 26 March 2014, the Registry of the Court sent to the Högsta domstolen a copy of the judgment in Svensson and Others (C‑466/12, EU:C:2014:76), in which a number of questions concerning whether the placing, on an internet site, of a clickable link may be classified as an act of communication to the public were examined, requesting that court to inform it whether, having regard to that judgment, it wished to maintain its request for a preliminary ruling.

    66

    21      By a decision of 20 October 2014, the Högsta domstolen decided to withdraw the first four questions referred for a preliminary ruling and to maintain only the fifth question, which reads as follows:

    67

    ‘May the Member States give wider protection to the exclusive right of authors by enabling “communication to the public” to cover a greater range of acts than provided for in Article 3(2) of [Directive 2001/29]?’

    68

     The question referred for a preliminary ruling

    69

    22      It is apparent from the file that the main proceedings concern the provision, on an internet site, of links enabling internet users to access, on the site of a broadcasting organisation, live broadcasts of ice hockey matches, without having to pay the fee required by that organisation for that access. In those circumstances, the question referred by the referring court must be understood as relating, in essence, to whether Article 3(2) of Directive 2001/29 must be interpreted as precluding national legislation extending the exclusive right of the broadcasting organisations referred to in Article 3(2)(d) as regards acts of communication to the public which broadcasts of sporting fixtures made live on internet, such as those at issue in the main proceedings, may constitute.

    70

    23      As a preliminary point, it must be noted that, in accordance with Article 3(2)(d) of Directive 2001/29, Member States are to provide for the exclusive right for broadcasting organisations to authorise or prohibit the making available of fixations of their broadcasts to the public, in such a way that members of the public may access them from a place and at a time individually chosen by them.

    71

    24      Firstly, as follows from the wording of Article 3(1) of Directive 2001/29, and in particular from the terms ‘any communication to the public of their works, … including the making available to the public’, the concept of ‘making available to the public’, also used in Article 3(2) of that directive, forms part of the wider ‘communication to the public’.

    72

    25      Secondly, it is apparent from Article 3(2) of that directive that, in order to be classified as an act of ‘making available to the public’ within the meaning of that article, an act must meet, cumulatively, both conditions set out in that provision, namely that members of the public may access the protected work from a place and at a time individually chosen by them.

    73

    26      As is clear from the explanatory memorandum to the Commission Proposal of 10 December 1997 (COM(97) 628), which led to the adoption of Directive 2001/29, confirmed by recital 25 in the preamble to that directive, ‘making available to the public’, for the purposes of Article 3 of the directive, is intended to refer to ‘interactive on-demand transmissions’ characterised by the fact that members of the public may access them from a place and at a time individually chosen by them (see, to that effect, judgment in SCF, C‑135/10, EU:C:2012:140, paragraph 59).

    74

    27      That is not the case of transmissions broadcast live on internet, such as those at issue in the main proceedings.

    75

    28      The referring court asks none the less whether Article 3(2) of Directive 2001/29 is to be understood as precluding the Member States also granting the broadcasting organisations referred to in Article 3(2)(d) an exclusive right as regards acts which, such as those at issue in the main proceedings, could be classified as acts of communication to the public but which do not constitute acts of making available to the public the fixations of their broadcasts in such a way that members of the public may access them from a place and at a time individually chosen by them.

    76

    29      In that regard, first of all, as is apparent from recital 7 in the preamble to Directive 2001/29, the objective of that directive is to harmonise copyright and related rights as far as is necessary for the smooth functioning of the internal market. It follows from that recital that the objective of that directive is not to remove or prevent differences between the national legislations which do not adversely affect the functioning of the internal market. Thus, and as is also clear from the heading of that directive, the EU legislature has harmonised copyright and related rights only in part.

    77

    30      It follows from recitals 23 and 25 in the preamble to that directive that the EU legislature sought, firstly, to harmonise further the author’s right of communication to the public and, secondly, to overcome the legal uncertainty regarding the nature and the level of protection of acts of on-demand transmission by providing for harmonised protection at Community level for that type of act.

    78

    31      However, neither Article 3(2) of Directive 2001/29 nor any other provision thereof states that the EU legislature sought to harmonise and, in consequence, prevent or remove any differences between the national legislations as regards the extent of the protection which the Member States may grant to the holders of the rights referred to in Article 3(2)(d) with regard to certain acts, such as those at issue in the main proceedings, which are not expressly referred to in that provision.

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    32      Furthermore, in accordance with recital 20 in the preamble to Directive 2001/29, that directive is based on principles and rules already laid down in the directives in force in the area of intellectual property, including Directive 92/100 (see judgment in Football Association Premier League and Others, C‑403/08 and C‑429/08, EU:C:2011:631, paragraph 187).

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    33      It is apparent from recital 16 in the preamble to Directive 2006/115, which replaced Directive 92/100, that the Member States should be able to provide for more far-reaching protection for owners of rights related to copyright than that required by the provisions laid down in that directive in respect of broadcasting and communication to the public.

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    34      Article 8 of that directive, entitled ‘Broadcasting and communication to the public’, states in paragraph 3, in particular, that Member States are to 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.

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    35      Thus, it must be held that Directive 2006/115 gives the Member States the option of providing for more protective provisions with regard to the broadcasting and communication to the public of transmissions made by broadcasting organisations than those which must be instituted in accordance with Article 8(3) of that directive. Such an option implies that the Member States may grant broadcasting organisations an exclusive right to authorise or prohibit acts of communication to the public of their transmissions on conditions different from those laid down in Article 8(3) and in particular transmissions to which members of the public may obtain access from a place individually chosen by them, it still being understood that, as provided for in Article 12 of Directive 2006/115, such a right must not affect the protection of copyright in any way.

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    36      It follows that Article 3(2) of Directive 2001/29 must be interpreted as not affecting the option open to the Member States, set out in Article 8(3) of Directive 2006/115, read in conjunction with recital 16 to that directive to grant broadcasting organisations the exclusive right to authorise or prohibit acts of communication to the public of their transmissions provided that such protection does not undermine that of copyright.

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    37      Having regard to all the foregoing considerations, the answer to the question referred is that Article 3(2) of Directive 2001/29 must be interpreted as not precluding national legislation extending the exclusive right of the broadcasting organisations referred to in Article 3(2)(d) as regards acts of communication to the public which broadcasts of sporting fixtures made live on internet, such as those at issue in the main proceedings, may constitute, provided that such an extension does not undermine the protection of copyright.

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     Costs

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    38      Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

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    On those grounds, the Court hereby rules:

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    Article 3(2) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society must be interpreted as not precluding national legislation extending the exclusive right of the broadcasting organisations referred to in Article 3(2)(d) as regards acts of communication to the public which broadcasts of sporting fixtures made live on internet, such as those at issue in the main proceedings, may constitute, provided that such an extension does not undermine the protection of copyright.

    89

     

  • 8 C More Entertainment (SUMMARY) - Giancarlo F. Frosio, (C) More Entertainment for Broadcasters: The European Court of Justice on Linking to Live Streams of Sport Events, CIS Blog, March 31, 2015

  • 9 Additional Readings

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