TV and radio transmissions in spa establishments are communications to the public, says AG Sharpston

Communication to the public: yes or no?
Merpel can't say without
investigating in person

There are times when even a copyright-loving Kat may miss a copyright case, not necessarily because she is having fun relaxing at a spa, as is instead the background at the origin of another reference to the Court of Justice of the European Union (CJEU). So, katpat to the one and only IPKat Jeremy for telling everything about Case C-351/12 Ochranný svaz autorský pro práva k dílům hudebním, o.s. (OSA) v Léčebné lázně Mariánské Lázně a. s. [more handily: OSA], a reference for a preliminary ruling from the Krajský soud v Plzni (Czech Republic) concerning the ever-exciting right of communication to the public, effect of badly-implemented directives, and collective rights management. Most importantly, this is a case in relation to which Advocate General Eleanor Sharpston delivered her Opinion on 14 November last. 

But what is this mysterious (at least to this Kat) reference all about?

As neatly summarised by the AG, radio and TV sets in the bedrooms of a residential [and very nice: see here] health spa establishment in the Czech Republic give access to broadcast works [Merpel suspects that this Czech spa may not be the only one]. 

Under Directive 2001/29, holders of copyright in such works have the exclusive right to authorise their communication to the public pursuant to Article 3(1) of this directive and may claim fees for doing so. 

OSA, a copyright collecting society with exclusive rights to enter into licence agreements and collect fees on behalf of authors of musical works in the Czech Republic, claims fees for such communication to the public by the establishment in question. 

The establishment objects both that the service in question is not communication to the public and that the Czech collecting society’s territorial monopoly infringes the establishment’s right, derived from EU provisions on freedom to provide services, to enter into a licence agreement with a collecting society in another Member State – a problem which, it claims, is exacerbated by the Czech society’s abuse of its national dominant position by charging excessive fees.

The Regional Court of Pilsen wishes to know:

1)    whether the service in question constitutes communication to the public within the meaning of Directive 2001/29;

2)    whether the relevant provisions of that directive are sufficiently precise and unconditional to be relied upon in a dispute between individuals; and

3)    whether EU law precludes a Member State from according a single collecting society exclusive rights within its territory.

Readers will promptly remember CJEU decisions in Case C-306/05 SGAE, Case C-162/10 Phonographic Performance (Ireland) (here and here) and Case C-135/10 Del Corso (here), in which the Court held that communications by hotels to hotel bedrooms are public and private dental clinics are not. So:

Still investigating:
Merpel can't really decide

1) Is a spa more akin to a hotel or a dentist waiting room? 

According to the AG, this question has an easy answer: a spa establishment resembles more a hotel room than a dentist waiting room: 

"Spa establishments typically have a broader and less determinate clientele than dentists (and counsel for the Spa described it at the hearing as possibly the largest such establishment in Europe); the availability of access to television and radio broadcasts in bedrooms may well influence a patient’s choice of establishment; and in that regard the availability of choice is likely to be significant.

Moreover, the television and radio sets are in residents’ bedrooms. They are used in the context of enjoyment of the accommodation facilities offered by the Spa, not of its health care treatment. Such a situation is clearly analogous to that of the hotel guests in SGAE."

From these considerations descends that the provision of television and radio sets in bedrooms in a spa establishment, together with the relevant signal enabling broadcasts to be heard or viewed, must fall within the concept of communication to the public in Article 3(1) of Directive 2001/29. 

Of course, Article(5)(2)(e) [exception or limitation in favour of social institutions pursuing non-commercial purposes, such as hospitals or prisons] would not apply in that this provision is concerned with the right of reproduction, nor would Article 5(3)(b) [exception or limitation for the benefit of people with a disability] of the directive. The latter, in fact, concerns communications to the public which are directly related to the disability and are of a non-commercial nature, while in this case suggests there is no relationship between the availability of television and radio sets in spa bedrooms and any specific disability from which patients may suffer.

Still thinking:
It will take an extra week (minimum)
at the spa before Merpel
can reach a conclusion

2) Are the relevant provisions of Directive 2001/29 sufficiently unconditional and precise for collecting societies to rely on them before national courts if a certain Member State has failed to implement it correctly? 

According to the AG, the answer must be in the affirmative:

"[W]hen national courts apply domestic law, they are bound to interpret it, so far as possible, in the light of the wording and purpose of any relevant directive, in order to achieve the result sought by the directive. That obligation is inherent in the system of the Treaty on the Functioning of the European Union. It enables those courts to ensure the full effectiveness of EU law when they determine disputes within their jurisdiction ... If a Member State has failed to implement Directive 2001/29 correctly, a national court hearing a claim for copyright fees against an individual must interpret its domestic law, so far as possible, in the light of the wording and purpose of that directive, in order to achieve the result sought by it."

3) Can a Member State reserve the exercise of collective copyright management to a single collecting society?

Again, the answer should be in the affirmative according to AG Sharpston. Although this creates a territorial monopoly which deprives recipients of services of the freedom to choose a collecting society in another Member State, this is neither a violation of the freedom to provide services nor tantamount to a violation of Article 102 TFEU [abuse of a dominant position].

This Kat wonders whether the conclusion of the AG might be have been influenced to some extent by the recent decision of the General Court [not cited in the Opinion] in Case T-422/08 CISAC (here), in which it was recalled – among other things – that the structures used for traditional forms collective rights management and related national territorial limitations are not usually considered by the Commission to constitute an infringement of competition rules.

But will the Court follow its AG’s Opinion? Just wait and see.