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Which are the criterias used by the ECJ ?
First, we should look at Article 3 of the Directive. This article states :
” Right of communication to the public of works and right of making available to the public other subject-matter
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.
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:
(a) for performers, of fixations of their performances;
(b) for phonogram producers, of their phonograms;
(c) for the producers of the first fixations of films, of the original and copies of their films;
(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.
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. ”
Now, let’s look at the decisions of the ECJ to see if some criterias might be asserted.
1) Premier League :
A system of license for the retransmission of football match which confers to the radio diffusion a territorial exclusivity for each Member State and prohibits spectators to watch those emissions with a decoder card in other Member states is contrary to the right of the Union. The Court of Justice asserts that a national legislation that prohibits to import, sell or use foreign decoder card is contrary to the provision of service and can’t be justified regarding the objective of the protection of intellectual property or regarding to the objective of promoting the presence of the public in football’s stadium.
Why is it not protected by IP rights ? The Court of Justice considers that match can’t be considered as own creation of the author. And therefore, there are not considered as a “work” that should be protected by copyright.
The Court considers that a system of exclusive license is also contrary to antitrust law of the Union if they prohibit to give foreign
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According to article 3 of Directive 2001/29/EC on the harmonization of certain aspects of copyright and related rights in the information society « Member States shall provide authors with the exclusive right to authorize or prohibit any communication to the public of their works ».
Over the recent months the Court of Justice of the EU has issued several decisions on the matter trying to define the limits of the « communication to the public right ». In these cases several criteria to set the limits of what falls under the exclusive control by the copyright owner are to be found :
A first condition of making a communication to the public is having an undetermined group of people. In the Consorzio case the ECJ adds that it implies a large number of people. Which means that it excludes groups of people that are too small. The Court examines the number of people who had access to the same work at the same time and how many of them have access to it in succession. For example, when we look at a hotel room in the decision of Phonographic Performance Ltd the Court takes into account the rotation of people in every room. And in the SGAE/Rafael hoteles case the Court concluded that the succession of people in hotel rooms was very quick and that a great amount of people had access to the broadcasts.
A second condition that the Court takes into account is the profit-making nature of the communication. This means that the Court analyses if the person that made the broadcasts available did it with the idea of making an impact on his income. As we can see, this criterion is even more important in the Premier League case.
However in the Consorzio Fonografici v. Del Corso and the Phonographic Performance Ltd cases, this condition is less clear. In the Consorzio case it is hard for a dentist to charge higher prices because of the broadcasts he is putting in his practice. The broadcast was not for profit-making nature and thus was not considered as a communication to the public. But for a hotel it was considered as communication to the public because it could increase the profit by demanding higher prices thanks to the communication.
A last condition is that you should deal with a new public. This means that the ones receiving the communication now are others than those taken into account by the author when he first consented to the transmission of his work. Thus the new public refers to any additional public to whom the distribution of the work was not originally directed.
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Article 3 of Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society provides that « 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. »
The European Court of Justice has developed its case law over the past few years, to begin with the Egeda and Lagardère arrests. However, the Rafael hoteles case was a turning point in its case law. Even if the Copyright directive is silent about the definition of « Communication to the public », the Court has made a few attempts to define it, and has come to a much larger interpretation of « communication to the public ».The Court has also defined in an earlier decision (Mediakabel BV v Commissariaat voor de Media(Case C-89/04)) the « public » as « an indeterminate number of potential viewers and a fairly large number of people ».
Recently, the Court has tried to fix some criteria in such cases as the Premier League (4 October 2011) or Phonographic Performance Ltd (15 March 2012) to set the limits of what falls under the exclusive control by the copyright owner.
First, 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’ ».
Under the criterion « fairly large number of people », the Court has pointed out 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 (…) and that account must be taken of the cumulative effects of making works available to potential audiences. » So it is 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. »
Third, the Court has held that if it is relevant that a ‘communication’ conform to Article 3(1) of the 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. » It must be clear that public targeted for the communication isn’t there by « chance », but that it is « receptive » to the communication.
So to conclude, the Court uses three criteria to establish whether there is a communication to the public or not. Those criteria have been developed by the evolving case law of the European Court of Justice. It seems to be that the Court is finally finding a stable solution.
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In the three decisions I read, we can clearly see that the Court of Justice of the EU has attempted to define the limits of the “communication to the public right” as defined in article 3 of the 2001/29 Directive on copyright and related rights in the information society which requires that Member States have to “provide authors with the exclusive right to authorize or prohibit any communication to the public of their works”. It’s important however to notice that the case law isn’t always completely consistent. Several criteria used by the CJEU to set the limits of what falls under the exclusive control by the copyright owner can be found in these cases.
When we look at the conditions of making a communication to the public, we notice that having an “undetermined group of people” is an important condition. This criterion refers to the public in general and it doesn’t necessarily have to be a large number of people in the same room. When we look at a hotel room for example (Phonographic Performance Ltd), the Court takes into account the rotation of people in every room and despite the fact that not everyone will watch the same program, the simple possibility of it seems enough for the Court. So it’s not always the actual audience that’s taken into account.
Another interesting condition is the profit-making nature of the communication. In the Premier League case this criterion is indeed taken into account and has been examined by the court. We could even consider that this condition is much more important in this case than in the other two cases. There were the programs can be sold at a much higher price in the UK (because a lot of people in the UK watch these matches) they are far less interesting for the Greek. That’s why there are lower prices for the decoders (needed to transmit the matches) in Greece than in the UK. In the Premier League case, we notice that the profit making nature of the communication is of great importance because people tried to make profit out of this price difference (decoders sold in the UK vs. decoders sold in Greece) by importing cheaper decoders from Greece to the UK to sell them at a higher price than in Greece, but lower than in the UK prices. (One of the issues that can be revealed, but that I won’t discuss in any further; is the freedom of movement of goods). We obviously see that the profit making nature of the communication is essential in this case.
However for the two last cases (“Consorzio Fonografici v. Del Corso” and “Phonographic Performance Ltd”) I personally think it’s less clear. How can we distinguish these two cases based on that criterion? In my opinion there might be some contradiction: there were a hotel could indeed make profit out of the communication by increasing there prices for hotel rooms with these programs (television and/or radio), it’s much more difficult for a dentist to demand higher prices just because of the music he’s playing in his work office.
Another criterion that’s present in the three discussed cases is the fact that the public doesn’t always have to be there where the communication started. In other words, there doesn’t necessarily have to be a physical contact between the author of the work and the people to whom the communication is made.
A last criterion related to the public, is that it has to be a “new” public. This means that the ones receiving the communication now are others than those taken into account by the author when he first consented to the transmission of his work. So any public other than the one receiving the original distribution falls under this category.
Show lessGood review which highlights the most relevant issues. Wording to be improved sometime.
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The ECJ use various criteria to know if there is a communication to the public and if it gives right to an equitable remuneration to the producer of the phonograms.
First of all, the concept of “public”, since the Lagardère case, is defined as an “indeterminate number of people”.
The ECJ goes further in the Consorzio case, where it adds that it implies large number of persons, so excluding groups of persons that are too small, insignificant.
The court examine the number of people who had access to the same work at the same time and how many of them have access to it in succession.
This succession criterion was quite important in the SGAE/Rafael hoteles case. In this case, the court concluded that the succession of people in hotel rooms was very quick and high, so that a large number of people had access to the broadcasts of the hotel.
It is also non irrelevant that the communication is of a profit-making nature. The Court take into account if the access to broadcasts is made with the intention to have an effect upon the number of people going to that establishment and on its financial result.
The court held for example that the actions taken by a hotel operator by which it gives access to a broadcast work to its customers must be considered as an additional service performed with the aim of obtaining some benefit since it has an influence on the hotel’s standing and the price of the rooms.
Furthermore, the simple fact that people have access tot the broadcast is sufficient to constitute communication to the public, even if people don’t actually take advantage of that availability.
To summarize, the ECJ examine if there is an indeterminate and not insignificant number of people that have an access to the same work at the same time and how important is their succession.
In the case of a dental practice, like in the Consorzio case, it was not the case.
The Court also take into account if the person that took action in order to make the broadcasts available did it to impact on the income of his establishment. It wants to know if that has an impact on the price.
In the Consorzio case, the dentist could not expect a rise in the number of his patients because of the broadcasts he was putting in its practice and it has no impact on the price of his treatment. The broadcast was not for profit-making nature and it was not considered as a communication to the public.
But for a hotel, it is very different as developed supra. Since it is for profit-making nature, or at least it has an impact on the price of the rooms and the standing of the hotel, and that a large and indeterminate number of people with a high and quick succession can have access to the broadcasts, it was considered as communication to the public.
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Consorzio :
Mr Del Corso, a dentist, broadcasted protected phonograms to his patients. The question is whether the broadcasting, free of charge, of phonograms in private professional practices such as dental practices, for the benefit of patients of those practices and enjoyed by them without any active choice on their part, was included in the definition of ‘communication to the public’ and whether such an act of transmission entitles the phonogram producers to the payment of remuneration, within the meaning of Article 8(2) of Directive 92/100.
The court takes into account the context and purpose of the articles and states that the article 8 is of compensatory nature. The court states that the Article 8 requires an INDIVIDUAL interprétation of the concept of communication to the public. So the situation of a specific user and of all the persons to whom he communicates the protected phonograms must be assessed. That’s the criteria used by the court! But there are other complementary criteria, related to Article 3(1) of Directive 2001/29.
First, if the role of the user was indispensable or not.
Second, concerning the aspects of the concept of public, the term “public” means an indeterminate number of potential listeners, and, in addition, implies a fairly large number of persons.
And third, it is relevant to see if the communication is of a profit-making nature or not.
The Court applies those criteria to the facts of the case: The patients of Mr Del Corso can listen to the phonograms only because of the intervention of the dentist, it doesn’t result of their choice. They constitute a determinate circle of potential recipients, so they are not “persons in general” and they don’t constitute a large group. Concerning the profit making criteria, the dentist cannot expect a rise in the number of patients, or a rise in his income because of the broadcasting. Because the sole purpose of the visit to the dentist is the treatment.
The answer to the question is that there is no communication to the public in this case.
Rafael Hoteles:
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.
Court, as in Consorzio, takes into account the purpose and context of the article. The interpretation of « communication to the public » must consider the fact that the purpose of the directive is to offer a protection to the authors. The Court says, on the contrary to what is said in Consorzio, that a GENERAL approach is required. Consequently, the Court takes into account not only customers in the hôtel rooms, but also customers in other area of the hôtel who are able to usa a télévision set. And mentions the fact that a large number of customers succeed each other and so that a large number of people are involved so that they can constitute a public.
Again, the Court uses the criteria that it is from the intervention of the user, the hôtel here, that the clients can have an access to the protected work.
But there are 2 another criteria : the existence of a new public first.
Second, 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. 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.
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. Providing this service can increase the prise of the rooms. The Making-profit nature of communication criteria is again used by the court !
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. And the private or public nature of the place where the communication takes place is immaterial.
Hoasa:
The Court arrives to the conclusion that the question whether the reception by a hotel establishment of satellite or terrestrial television signals and their distribution by cable to the various rooms of that hotel is an ‘act of communication to the public’ or ‘reception by the public’ is not governed by the Directive, and must consequently be decided in accordance with national law. The Court takes into account the context and purpose of the Directive but gives no définition of those concepts and does not take position on the issue !
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The Article 3 of the 2001/29 Directive on copyright and related rights in the information society requires that Member States “shall provide authors with the exclusive right to authorize or prohibit any communication to the public of their works”. According to its evolving case law, the Court of Justice of The European Union has conceived this “communication to the public right” broader and broader over the past years. At first, each Member State had to decide if other forms of transmission of this performance to a larger audience were acts of “communication to the public”. However, the sense of the word “public” was already lightened up by the Court in the case Lagardère Active Broadcast. With the SGAE case, the Court made a first attempt to describe the limits of this “communication to the public”, which has no definition in the Copyright Directive. Over the recent years, the Court has issued several cases in order to precise the criteria fixing the grounds on which the exclusive right can be granted to the copyright owner.
The first criterion set out by the Court is the necessary intervention of the agent who distributes the protected work (fully aware of the effects of a distribution), whatever the technique used. The Court said in more precise terms that “Without its intervention the customers cannot enjoy the works broadcast, even though they are physically within the broadcast’s catchment area” (Joined Cases C-403/08 and C-429/08 Football Association Premier League and Others [2011] ECR I-0000, paragraph 195).
Furthermore, in the context of the Copyright Directive, the word “public” has to refer to a number of persons who could receive the protected work thanks to reception equipment. The “public” has to be understood as the people in general, an indeterminate number of persons which has to be quite large. It excludes thus the small or insignificant groups of individuals and is not restricted to private spheres.
Another criterion consists in the transmission of the work to a “new” public. The novelty of the public means that this public was not taken into account by the authors of the work when he gave its consent to the transmission of its work to the public reached originally. The so-called new public covers any additional public at which the distribution of the protected was not originally intended to.
In addition, the “communication to the public” involves that the protected work has to be transmitted to a “public not present at the place where the communication originates”. The criterion used by the Court is whether or not there is a direct physical contact between the author of the work and the persons who receive the work. The absence of any direct physical constitutes condition for the author to claim an infringement of his exclusive right.
The last criterion used by the Court consists in the “profit-making nature” of the communication. The person who transmits the protected work must benefit from this transmission, which is often considered by the Court as a financial advantage. The Court recently held that “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” (Case C-135/10, Consorzio Fonografici v. Del Corso, 15 March 2012, paragraph 91).
In conclusion, the criteria retained by the Court seem to evolve according to the development of new techniques of transmission. It is likely that the Court will add other criteria in future cases to determine even more precisely the scope of the “communication to the public right”.
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The two last cases are the most interesting ones indeed.
The first case of 15 March 2012, C-135/10, Consorzio Fonografici v. Del Corso involved a dentist who let his clients listen, free of charge, to a broadcast as background music in the waiting room. The second case of the 15 March 2012, C-162/10, Phonographic Performance Ltd, concerned hotels using broadcasting of music through television or radio for their guests.
In both cases the question asked to the CJEU was whether producers of phonograms have the right to obtain remuneration when the music is used as a background for the clients. These two cases are very similar but still the CJEU ruled differently.
The interpretation Art 8 par. 2 of the Directive 2006/115/EC was the cause of the different rulings. This article requires a member state to ensure that a remuneration is paid when 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. The court held that the remuneration mentioned in this article of the directive must be seen as an economic right that only produces it’s effect when the phonogram is used for communication to the public by a user. In other words the phonogram producers cannot prevent the communication of the work to the public.
The European Court will then say that it’s the judge that must consider if the user knew that his action where illegal. The judge will have to examine every situation separately and determine whether the user that broadcasts the music to his clients is aware of the fact that this is a protected work. In other words, the user has to be fully aware of his own actions and of the consequences.
The court goes on by saying that the judge also has to evaluate if the communication of the work reaches a large number of people, if those people have access to the same work at the same time and if the user makes a profit out of this communication.
By applying these criteria, the CJEU ruled that, in the case of the dentist, no communication to the public occurs. It came to this conclusion by saying that the few patients waiting in his waiting room could not be considered a public, because they are not a large group. It also considered that the patients probably didn’t all hear the same work because they keep coming and going. So the number of listeners to he same work will be very limited. This sort of communication does not make any profit for the dentist as the patients are there to get a treatment and not for the music. On the basis of this analysis, the European Court concluded that phonogram producers are not entitled to obtain an equitable remuneration from the dentist.
The same criteria determined the European Court to rule that in the case of music made available in hotel rooms through TV or radio sets, the hotel operator makes a communication to the public. The guests of a hotel are viewed as a public. The music that the quest can listen to is part of a service offered by the hotel and the hotel can charge them for this service. Therefore the phonogram producers have the right to be remunerated.
What we can conclude from these two cases is that the court wants the judges to view very situation one at a time. The decision will defer according to the context in which the music is used. The judges have to examine if there is a public involved and if the work generates a benefit to the user that communicates it to the public.
We could imagine a situation where professionals use the work as background music for their patient and that it does generate a profit for them. In that case the decision would be different than in the dentist’s case.
There is still a lot of uncertainty around the communication to the public right. The court changes its view according to the circumstances.
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The CJEU has set several limits of what falls under the exclusive control of the copyright owner.
In Premier League judgment, the ECJ had to define the notion of « communication to public » within the scope of Article 3(1) of the Copyright Directive in order to determine wheter or not there was a violation of FAPL’s copyrights. « The concept of communication must be construed broadly, as referring to any transmission of the protected works, irrespective of the technical means or process used ». The proprietor of a public house who transmits the broadcast to his customers enlarges the public who sees the broadcast, the work is communicated to a new public. The proprietor will therefore benefit from the transmission of the broadcast (profit-making nature).
The « communication to the public » within the meaning of Article 3(1) of the Copyright Directive must be interpreted as covering transmission of the broadcast works, via a television screen and speakers, to the customers present in a public house.
However in Phonograph v. Ireland, « 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 ». The number of the hotel’s guests is undetermined but they are all potential listeners and, as the previous case, this broadcasting is of profit-making nature. As a consequence, the hotel should pay equitable remuneration for the use of phonograms.
The judgment « Società Consortile Fonografici v Marco Del Corso » underlines three features that make a communication a « communication to public ». First, there is the indispensable role of the « user » who gives access to a « protected » broadcast to his consumers. Second, there is the notion of « public » which is aimed at an undeterminated number of potential listeners (fairly large number criterion). This put a minimum treshold on the notion of « public ». In addition, you also have to know how many people have access to the broadcast in succession. In this case, the patients of the doctor don’t represent such a big group and they all attend one at a time. Third, as held in the Premier League judgment, it’s not irrelevant to see wheter or not the broadcasting has a profit-making nature which is not the case for the dentist Del Corso.
As a conclusion, we can say that the Court of Justice interprets very broadly the notion of « communication of public » but has settled some criteria to have a more precise définition.
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The judgment of 14 July 2005 concerns a preliminary ruling based on two questions. Essentially, it can be summed up as following: concerning remunerations and broadcast companies, are the legislations of the Member State in which the broadcast company is established and the laws of the Member State in which the terrestrial transmitter is built prevented from use due to the Directive 93/83?
In order to answer to that question, the Court of Justice needs to “consider whether broadcasting of any kind at issue in this case constitutes a communication to the public by satellite within the meaning of Article 1(2) (a) of Directive 93/83? Does this Directive apply?
The Court starts by defining what communication to the public by satellite means. Moreover it develops a few arguments. First, §33, it is affirmed that since individual reception and communications on public frequency bands do not take place in the same circumstances, the satellite in question in this case has a different meaning than the one in article 1 (1) of the Directive. Second, as a consequence of the first matter, the requirement laid down in the Directive (article 1 (2) (a) that concerns the programme-carrying signals intended for the reception by the public cannot be met. Third, the Directive focuses on a closed communications system. Such a system cannot be received by the public, there would be no broadcast. Fourth, in an event of malfunction, there would be no transmission therefore the Directive would be unapplicable.
The Court concludes by responding that the broadcast at issue does not constitute a communication by satellite to the public as the article 1 (2) (a) of the Directive povides. Therefore it does not fall into the scope of article 1 (2) (b) of that same Directive either (§43).
The decision of the Court of 7 December 2006 is a turning point. It is also a preliminary ruling where the basic question asked is whether the distribution of a signal through a television set in hotel rooms fall in the concept of communication to the public as the Directive 2001/29 Article 3 (1).
The Court notices that communication to the public is not defined in the Directive so it will have to define the limits of that concept. The Court uses the Guide to the Berne Convention in order to interpret that Convention. It states that when the reception is for a larger audience, it is not a simple reception of the programme and so if the broadcast work is communicated to a new public. And, according to the Court, the clientele of a hotel constitutes such a new public. And it is the hotel that guarantee the broadcast of programmes. In §43, the Court explicitly says 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”. Here, we can see that the Court expands the notion of communication to the public in very large notions, words.
The Court in §47 concludes by ruling that physical facilities have no relevance, only the distribution of a signal by means of television sets by a hotel to customers staying in its rooms constitutes communication to the public within the meaning of Article 3 (1) of that directive.
Another question asked whether the use of communication of a work in hotel rooms is exluded of the application of the Article 3 (1) of the Directive 2001/29. The Court answer that the private nature of the hotel rooms does not preclude the communication of a work as communication to the public.
In the case of 15 March 2012, the Court confirms its previous decision on the matter.
From these three cases, we can conclude that the Directive gives no clear definition of communication to the public. The Court points out some criteria. There is a need to have a new public. In a hotel for example, people constantly come in and out. So it can be said that there is a “renewal” of the public. In the Premier League case, there is a reference to the Guide of the Berne Convention that helps for the interpretation of that Treaty (the same reference can be found in the 7 December 2006 case at §41). Finally, as the Court states in its Premier League decision, it does not matter whether communication to the public is of “a profit-making nature”.
Thanks a lot. Your last comment: “the Court states in its Premier League decision, it does not matter whether communication to the public is of “a profit-making nature” is not correct. Look at the decision again!
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Indeed, after a second, thorough reading, the Court says that “It follows that the communication to the public in question is of a profit-making nature” (§206). I might have skipped something.
In §204, the Court states that the profit-making nature of communication is not irrelevant.
In §205, the broadcast attracts people to the hotel, increasing the results, the profits.
The conclusion can be found in §206.
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The European Court of Justice has delivered a certain number of cases attempting to define the limits of the “communication to the public right” as defined in Article 3 of the 2001/29 Directive on copyright and related rights in the information society.
This paper will tend to apprehend the concept and to analyze the limits of the criteria set by the ECJ throughout its case law.
In a first time, we will aim at highlighting the reasoning of the Court in one of its most relevant case concerning Premier League matches broadcasting. Then, we’ll focus on the last 2 cases delivered in March 2012.
In the premier league decision, the referring court asked “whether ‘communication to the public within the meaning of Article 3(1) of the Copyright Directive must be interpreted as covering transmission of the broadcast works, via a television screen and speakers, to the customers present in a public house”.
The Court underlined that the article 3 of this directive does not define the meaning of “communication within the meaning of Article 3” and thereby, it has to assert some sort of definition in the light of “the objectives pursued by the Copyright directive”. This directive aims mainly at establishing a high level of protection authors in order to allow them to obtain a reasonable remuneration from the use of their work.
The Court goes even further in its reasoning and asserts that the Copyright directive is in line with the rules laid down in former directives related to intellectual property rights and also with the international law of intellectual property law, that’s to say: the Berne convention and the Copyright treaty.
Eventually, the Court admits that « communication to the public within the meaning of Article 3(1) of the Copyright Directive should be interpreted and that it should be assessed whether that concept covers transmission of the broadcast works, via a television screen and speakers, to the customers present in a public house”. This constitutes a broad interpretation of the “communication to the public”. It must be understood as « any transmission of the protected works, irrespective of the technical means or process used ».
Again, the Court based its argument on the Copyright directive, which asserts that it covers all communication to the public not present at the place where the communication originates. This rejects the argument raised by FAPL and states that Consequently, the transmission in question has an effect upon the number of people going to that establishment and, ultimately, on its financial results. It is profitable.
In the light of such case, we can have a comprehensive understanding of the reasoning of the Court. Many international sources on Copyright or European directives on IP are used as means by the Court to give a definition of such concept whereas the article 3 of the directive does not provide a clear definition. This constitutes a broad interpretation and will be probably controversial in the domain of broadcasting.
In the case concerning the installations of radio/televisions in an hotel bedrooms, the notion of “public communication” was at stake and the Court referred to many international sources as the Berne convention or WPPT.
The term public has to be understood, according to the Court, « an indeterminate number of potential listeners and a fairly large number of people ». The Court emphasizes the criterion of fairly large number of people. It needs to be a large group of person. Such group must be significant. In fact, the notion of public encompasses a minimum of Threshold.
Then, we must observe how transmission of the same work proceeds between these people in succession. The Court stated that according to them, 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 ». 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. Eventually, the Court answered the question and asserted that the hotel, by providing in guest bedrooms televisions/radios that distributes broadcast signals, is making a communication to the public that falls within the meaning of Article 8 of Directive 2006/115.
The case law of ECJ regarding the concept of public communication has evolved overtime and the Court is giving lengthy details on the criteria used to define public communication. It is obvious that at first side, the concept seems abstract but the Court gathers all sorts of means found in international IP law or EU law in order to solve the issues at stake.
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Article 3 of the 2001/29 Directive on copyright and related rights in the information society requires member states to provide authors with the exclusive right to authorise or prohibit any communication to the public of their works.
What the concept of communication to the public covers, has evolved with different cases delivered by the European Court of Justice over the years.
In recent cases such as the Premier League case of October the 4th 2011 or the Phonographic performance case of March the 15th 2012, the European Court of Justice stated clearly the relevant criteria to determine what falls under the concept of communication to the public.
The first criterion pointed out by the European Court of Justice is the following:
The act of communication has to be an act without which the public is unable to enjoy the work broadcast, although the public is physically within the broadcast’s catchment aera.
The second criterion pointed out by the European Court of Justice is the following:
The public has to be an indeterminate number of potential listeners (= persons in general, not restricted to specific individuals belonging to a private group) and a fairly large number of persons (= a certain de minimis threshold, which excludes group of persons which are too small, or insignificant).
The third criterion pointed out by the European Court of Justice is the following:
It is necessary for the work broadcast to be transmitted to a new public, that is to say, to a public which was not taken into account by the authors of the protected works when they authorised their use by the communication to the original public.
The fourth criterion pointed out by the European Court of Justice is the following:
The work broadcast must be transmitted to a public not present at the place where the communication originates. In other words, communication to the public within the meaning of the directive does not cover direct representation or performance.
The fifth and last criterion pointed out by the European Court of Justice is the following:
The act of communication is of a profit-making nature.
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The Court of Justice of the European Union has considered the meaning of « communication to the public », stating, in two of its most relevant decisions in this matter, C-135/10, Consorzio Fonografici v. Del Corso and C-162/10, Phonographic Performance Ltd, that EU legislation must, so far as possible, be interpreted in a manner that is consistent with international law, in particular where the legislative provisions are intended specifically to give effect to an international agreement concluded by the EU.
The CJEU reached opposite conclusions in the two rulings. Its reasoning is concentrated on the interpretation of art. 8 par. 2 of Directive 2006/115/EC, that requires Member States to ensure that an equitable remuneration is paid by the user when “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”. The European Court held that the meaning of “communication to the public” must be interpreted considering that the right of phonogram producers to obtain remuneration is an economic right, compensatory in nature, that produces its effects only to the extent that the phonogram is used for communication to the public by a user.
The European Court also held that, in order to establish whether a user (in the cases at issue, the dentist or the hotel operator) is making a communication to the public – and, consequently, the phonogram producer has title to receive remuneration – the judge must first consider whether the user intervenes, in full knowledge of the consequences of its action, to give access to its clients to a broadcast containing the protected work. Additionally, the judge needs to evaluate whether: the communication of the protected work is aimed at an indeterminate number of potential listeners, the foregoing high number of persons has access to the same work at the same time and the communication carried out by the user has a profit-making nature.
Although the conclusions of the CJUE may seem clear-cut on the interpretation of « communication to the public », the Court points out the fact that a case by case analyze is required in order to establish the true meaning of this concept.
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Three decisions are here examined and all those three deals with the concept of “communication to the public”. This concept isn’t defined in the Article 3 of Directive 2011/29/EC of the European Parliament and this creates some problem of interpretation. What is the scope of this concepts and the limits? That is what ECJ defines in its decisions.
First of all its meaning and its scope must be determined in light of the objectives pursued by the Copyright Directive which is the establishment of a high level of protection of authors, allowing them to obtain an appropriate reward for the use of their Works. It is also important to state that, Article 3(1) of the Copyright Directive must be interpreted in a manner that is consistent with international law, in particular taking account of the Berne Convention and the Copyright Treaty.
In all those condition, three criterions where stressed.
– The indispensable role of the user. There is a communication to the public if without its intervention the customers cannot enjoy the works broadcast, even though they are physically within the broadcast’s catchment area.
– Certain aspects of the concept of public are also important. The term “public” refers to an indeterminate number of potential listeners, and implies a fairly large number of persons.
– The profit-making nature of the broadcast. It is not enough for the communication to “catch” the public by chance, the public must be both targeted by the user, and receptive to that communication.
The criterion of the indispensable role of the user is met in all three decisions. In premium league, It must be held that the proprietor of a public house effects a communication when he intentionally transmits broadcast works, via a television screen and speakers, to the customers present in that establishment. In Consorzio Fonografici v. Del Corso, the patients 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. Finally, in Phonographic Performance Ltd, when a hotel operator provides in guest bedrooms televisions and/or radios to which it distributes a broadcast signal, 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. This criterion is easily met.
The criterion of the profit-making nature of the broadcast is also well determined. The public must be targeted and receptive.
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. Moreover, it is likely to attract additional guests who are interested in that additional service. This is the same for a proprietor who transmits the broadcast works in his public house in order to benefit therefrom and that that transmission is liable to attract customers to whom the works transmitted are of interest. Consequently, the transmission in question has an effect upon the number of people going to that establishment and, ultimately, on its financial results. On the other hand, this is not the case for a dentist. In a situation such as 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. Consequently such a broadcast is not of a profit-making nature. Since than, this criterion depends on the activity. Some profession or activities are more liable to profit-seeking than others.
Finally, the concept of « public » 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 ». Here again, it is not the case for the patients of a dentist. They aren’t « persons in general » because they form a very consistent group of persons and thus constitute a determinate circle of potential récipients. Next, the criterion of ‘a fairly large number of people’, excludes from the concept groups of persons which are too small, or insignificant. In the case of the patients of a dentist, the number of persons to whom the same broadcast phonogram is made audible 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. On the other hand, the guests of an establishment, 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. As regards the number of potential listeners, 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”.
The three criteria need to be fulfilled to fall in the scope of communication to the public and at the end of the day, the three criteria are quite clear and it’s only a matter of facts. You need an intervention of the user, this one need to do it in a profit making goal or at least his activity should influence the influence of the public and last but not least, there should be a large number of person which means that it doesn’t include small groups. Since than, everything doesn’t fall in the concept of communication to the public. The ECJ is always there to clear a situation.
Finally, it is important to state that the concept to communication to public is not only important for authors, performers, etc. to authorise or prohibit any communication to the public of their work but it is also important in the payement of rémunération according to Article 8(2) of Directive 2006/115.
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COMMUNICATION TO THE PUBLIC
One of the purpose of being protected by copyright is for its owner to eventually receive revenue from its work. Therefore, copyright owners can sell their work to customers. But what happens when these customers communicate the work they’ve paid for to the public? Article 3(1) forbids such transmissions but doesn’t define the concept of ‘communication to the public’. Therefore, the European Court of Justice developed criteria to define it in multiple decisions these last few years. We will here focus on three preliminary rulings: the Premier League, Consorzio Fonografici and Phonographic Performance Ltd cases.
In the Premier League case, the question was whether the owner of a public house could transmit broadcasted work that he’d paid for, to its customers via a television set and speakers. The Court first says that the purpose of the Copyright Directive is to give a high level of protection to the authors of copyrighted works. Therefore, the concept of communication to the public must be construed broadly. Thus, ‘communication’ encompasses all means of transmission of the protected work, including via a television set and speakers. Moreover, the concept of ‘public’ should be interpreted as meaning any new public, i.e. people that were not taken into account by the authors when they authorised the use of their work. Finally, this communication to the public must be done in profit-making purpose. In this case, the owner of an establishment clearly transmits football matches of the Premier League in the view that it will attract more customers and therefore making more money. Therefore, in this case, the ECJ ruled that communication to the public must be interpreted as “covering transmission of the broadcast works, via a television screen and speakers, to the customers present in a public house”.
In Consorzio Fonografici v. Del Corso, the Court of Justice has to decide whether communication to the public must be construed as covering transmission of radio programmes to the customers of dental practices. Though it is difficult to know how many people actually benefit from this, the Court reckons that it’s relevant to know not only how many people benefit from this at the same time, but also in succession. But in this case, the number of people listening to it is quite insignificant because very few people people are treated at the same time. And successively, they listen to different radio programmes. Most importantly, the Court says that a dentist cannot expect to have more clients if he diffuses radio in his dental practice, so he doesn’t do it in the purpose of profit-making. That of course, differs from the Premier League case because in that case, profit-making was of course the main purpose of the transmission of football matches. Finally, clients of dentists cannot actively choose the radio programmes transmitted to them. Rather, they listen to them ‘by chance’. In other words, the communication must be “both targeted by the user and receptive”. Therefore, the ECJ answers negatively to the above-mentioned question.
Finally, in Phonographic Performance Ltd, the Court rules that a hotel operator must pay equitable renumeration to the copyright owner when it provides its guest rooms with televisions and/or radios. Indeed, customers of a hotel constitute a fairly large amount of people which are a ‘new public’. In this case too, providing televisions and/or radios in a hotel room enhances the standing of the hotel and therefore the price of the rooms, making it profitable for the hotel.
All those cases are very interesting because we see that sometimes, copyright owners cannot completely control the use of their work. That is the case in Consorzio Fonografici v. Del Corso: dentists, and medical practices in general, can freely transmit protected works in there practices without paying anything more to the copyright owner.
But it’s even more interesting in the sense that it’s useful to know these criteria for ourselves. For example, let’s imagine that the law delegates wanted to transmit a football match during a Souper de Cours. That could of course be considered as a communication to the public in the sense of Article 3(1) of the Copyright Directive. Indeed, that event could attract a whole ‘new public’ in the sense of the ECJ, and it could potentially be open to anyone (quite a large amount of people). Also, it would be transmitted on a giant screen and with speakers (any means of transmission is encompassed in the concept of communication). Furthermore, it’s honest to think that the delegates would expect more revenue from this transmission as many people would pay to enter and buy lots of drinks. It would thus be profitable. Of course this is hypothetical, but it’s worth thinking about it…
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Regarding the directive, it can be seen that the legislator has chosen not to define the notion of “public communication”. As a result, it has been the ECJ’s job to establish the criteria as to when there is public communication.
As such, several cases have been issued, but three landmark cases are to be pointed out. The latter all have different situations which converge to a common question: when is there public communication and as such, what falls under the exclusive control of the copyright owner?
Premier League
In this case, a society, FAPL, manages the concession of broadcasting rights relative to a series of football games. The purpose being to make these available in all parts of the world, a procedure similar to a public market is organized to select those who will be able to broadcast the football games locally. With respect to a principle of competition, only the people who subscribe to the local broadcast distributors in exchange of payment can have access to the games, creating a territorial exclusivity.
The problem at hand is the fact that local shops and bars can have access to other distributors than those who have the broadcasting rights for a particular zone.
The FAPL protests and asks the local judge to submit a question to the ECJ: does the broadcasting of protected work in a bar, using one TV screen and a pair of speakers, fall under the scope of public communication?
The Court, as in all other cases, starts by recalling that article 3 of the directive does not define the notion of public communication, and that it is thus necessary to take into account the aim of the provision, which is to protect authors and allow them to have equitable remuneration when sharing their work. The provision must also be set in context.
The Court then isolates three separate criteria.
As her first step, the Court defines the notion of “communication”, and specifies that it must be understood in a broad sense: communication is all broadcasting of protected sounds, signs or images, regardless of the broadcasting technology used.
As such, the broadcasting of a football competition constitutes communication as meant in article 3 of the directive.
The Court then continues with the notion of “public”.
The public must be one that was not taken into account by the author when allowing the framed sharing of his work.
In this case, it was meant that the only people to have access to the broadcast where the ones who specifically subscribed to a licensed distributor. In casu, it clearly is not the case.
Moreover, the Court adds that for the communication to be public, the latter must not be present at the original place of communication (the actual football game).
Again, considering those elements, it is clear that the clientele of such a pub falls under the notion of “public” as meant by article 3 of the directive.
Finally, the last criterion set by the Court is that of the lucrative purpose of the broadcast. It goes without saying that by broadcasting popular football games, commercial activity will be enhanced as more people will come at the pub and spend at the bar.
So in this case, the Court concludes to public communication and confirms FAPL’s reasoning.
Consorzio Fonografici v. Del Corso
Although the facts are different, the issue is very similar.
In this case, SCF has been mandated to manage the rights distribution of phonogram producers.
Negotiations are engaged with the Association of Italian Dentists to find agreement on the broadcasting of (protected) phonograms in exchange for an equitable remuneration. They lead nowhere.
In parallel, SCF enters in litigation with a dentist, M. Del Corso, accusing him of broadcasting protected background music without providing for remuneration. M. del Corson argues that the local law imposing that equitable remuneration be provided when broadcasting of phonograms is not applicable on the motive that the law is only to be applied when the broadcasting takes place a public location.
Again, a similar question is asked by the Court of Appeal of Turin: should public communication be interpreted as covering free of charge broadcasting of phonograms in private a dental cabinet to the benefit of a clientele which “enjoys” it independently from its will?
The Court refers to the three criteria.
The first criteria previously used, was that of the notion of communication. The Court first acknowledges the active and exclusive role of the dentist in broadcasting the work, as it did for the Premier League case concerning the pub owner. In this case, there is communication.
But is there communication to the public? This criterion is more doubtful in this case. Indeed, the clientele does not choose to hear the phonogram. Moreover, the Court specifies this criterion by adding that the notion of public also comprehends a broad number of recipients, and the fact that these recipients are undetermined. However, in this case says the Court, the only people who have access to the broadcast are those who have an appointment or who have been let in by the dentist. They are a specific group of people, and re not undetermined.
As a consequence, the criterion of “public” is not fulfilled.
When it comes to the lucrative element, the Court holds that the broadcasting of background music has no impact on the size of the dentist’s clientele and does not cause him to earn more money. Again, this criterion is not fulfilled.
The Court thus concludes in this case that there is no “public communication” and that the dentist did not have to provide for an equitable remuneration.
Phonographic Performance Ltd
In this case, the circumstances are again a little bit different but the issue stays the same.
A hotel operator provides television and/or radio sets in the rented rooms, for his clients to access.
Is this a case of public communication? The Court, once more, applies the three usual criteria.
First, the Court acknowledges the key role of the operator in broadcasting the phonograms. As such, the criterion of communication is acquired.
Secondly, the Court states that a potentially broad number of people go through hotels and have access to these broadcasts, and that these people are undetermined. Again, the second criterion, existence of a public, is fulfilled.
Finally, the Court can hardly deny the lucrative purpose of the broadcasting: consumers are receptive to these broadcasts since they chose to access them, and of course pay for it.
The three criteria are verified, and the Court concludes to a case of public communication for which an equitable remuneration should be provided.
To summarize, the ECJ uses three criteria to establish the existence of public communication: the existence of communication and the active role of the person responsible for giving access to the broadcast (and as such, acting as a “valve” between the distributor and the public); the existence of an undetermined and receptive public; and the lucrative purpose in the broadcasting.
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Under Article 3(1) of Directive 2001/29, authors of a work have the exclusive right to authorize or prohibit any communication to the public of their works. However, this same article does not define the concept of ‘communication to the public’ (4 Oct. 2011, C-403/08, Premier League, §184).
The court has thus to interpret its meaning and its scope in light of the objectives pursued by the Copyright Directive and of the context in which the provision being interpreted is set. The main objective of the legislation is to offer a high level of protection of authors. In order to do so, the concept of ‘communication to the public’ must be interpreted broadly.
The concept of « communication to the public » requires an individual assessment. This assessment requires the examination of several criteria, which are linked together.
The first thing to know is that the word “public” embodies a undetermined and fairly large number of persons, a small group of people is not sufficient to say that it’s a public. There is a minimal threshold to be reached.
Moreover, we can say that there is a “communication” to this public when :
– Someone intentionally transmits broadcast works in full knowledge of the consequences of its action to give access to this works to other people. Without its intervention these other people could not enjoy the work. These people are not randomly there , they are specifically targeted.
– The work is transmitted to a new public. A new public is a public which “was not taken into account by the authors of the protected works when they authorized their use by the communication to the original public”. The authors of the work authorize the broadcast only in order to share their work “with the owners of television sets who, either personally or within their own private or family circles, receive the signal and follow the broadcasts”. (4 Oct. 2011, C-403/08, Premier League, §§ 197 and 198).
– The work has to transmitted to a public not present at the place where the communication originates. It does not cover the communication of works made before and in direct physical contact with the public .
– Finally, the examination must take into account the financial aspect and the court must assert if the aim of the broadcast was to obtain some benefit.
In principle, the national courts are competent to determine whether the examined situation fall under these criteria and thus whether it’s confronted, or not, with a “communication to the public”.
This answer is based on 3 decisions :
4 Oct. 2011, C-403/08 & C-429/08, Premier League
15 March 2012, C-135/10, Consorzio Fonografici v. Del Corso
15 March 2012, C-162/10, Phonographic Performance Ltd
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In the forever going struggle to enforce the right to an equitable remuneration for authors and producers of phonograms published for commercial purposes, the European legislator has innovated in 2001 with the right of making available to the public in art 3 of Dir 2001/29, implementing Article 8 of the WCT of 1996 for the authors and Articles 10 and 14 of the WPPT for the performers and phonogram producers.
However the article has not defined the term ‘communication to the public’, which results in an abundant jurisprudence of the ECJ on the subject.
Nowadays, in the light of the court’ case law, we can summarize the definition of ‘communication to the public’ as follows :
– Frist criteria : the user. When making a communication to the public, the person has to be aware that the consequence of its action is to give access to a broadcast containing the protected work to its customers.
We can observe in the Premier league case, the Consorzio case and the Phonographic performance case the ECJ has a fairly flexible interpretation of that criteria.
Both transmitting the matches in a pub on a television screen, (the matches being a communication to the public) without the copyright holder’s authorization, broadcasting music in hotel rooms and broadcasting music in its dental practice have been considered as following under the criteria.
– Second criteria : the public. There must be an indeterminate number (fairly large though) of potential beneficiaries of the communication.
Regarding that criteria the ECJ has specifically specified what is considered ‘fairly large’. The hotel’s customers were a ‘public’ because they were of ‘indeterminate number’ and were ‘a fairly large number of persons’ (§§ 41-42). The dentist’s clients, on the other hand, were not a ‘public’ because they formed a determinate group with separately identifiable individuals, and because only a small number would be present in the office listening to the broadcast at the same time (§§ 95-96)
– Third criteria: the profit making nature of communication to the public.
Show lessThe third criteria doesn’t seem to be problematic, what is examined is whether the communication has influence on the behavior and potential decision of clients. The ECJ has considered the hotel’s communication was of a ‘profit-making nature’ because it was “an additional service which has an influence on the hotel’s standing and, therefore, on the price of its rooms” and “is likely to attract additional guests who are interested in that additional service” (§44). The dentist’s broadcast, on the other hand, was not of a ‘profit-making nature’ because the dentist “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” and because the patients are not ‘receptive’, but rather listen to the music by a pure coincidence (§§ 97-98).
The ‘communication to the public’ case law is characteristic of the role of the ECJ in IP issues. The Court has a crucial, partly legislative task to accomplish when confronted with the proper enforcement of the multifaceted and continuously evolving phenomenon that is IP law.