Opinion of the Advocate General — ECLI:EU:C:2025:654
Date: 2025-09-04
Language of the case: German

Translation C-127/24 – 1 
Case C-127/24 
Request for a preliminary ruling 
Date lodged: 
15 February 2024 
Referring court: 
Bundesgerichtshof (Germany) 
Date of the decision to refer: 
8 February 2024 
Applicant and appellant on a point of law: 
Gesellschaft für musikalische Aufführungs- und mechanische 
Vervielfältigungsrechte eV (GEMA) 
Defendant and respondent on a point of law: 
VHC 2 Seniorenresidenz und Pflegeheim GmbH 
  
BUNDESGERICHTSHOF 
ORDER 
… 
Made on:  
8 February 2024  
…   
in the case of 
GEMA Gesellschaft für musikalische Aufführungs- und mechanische 
Vervielfältigungsrechte, … 
… Berlin, 
Applicant and appellant on a point of law, 
… 
EN 
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v 
VHC 2 Seniorenresidenz und Pflegeheim gGmbH, … 
… Unterschleißheim, 
Defendant and respondent on a point of law, 
… 
The First Civil Chamber of the Bundesgerichtshof has … 
made the following order: 
I. The proceedings are stayed. 
II. The following questions concerning 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) are hereby referred to the Court of Justice of the European 
Union for a preliminary ruling: 
1. Do residents of a commercially operated retirement home who 
have television and radio connections in their rooms, to which 
the operator of the retirement home simultaneously retransmits 
via its cable network, unaltered and unabridged, broadcast 
programmes received by means of its own satellite receiving 
system, constitute an ‘indeterminate number of potential 
recipients’ for the purposes of the definition of ‘communication 
to the public’ under Article 3(1) of Directive 2001/29/EC? 
2. Is the definition used to date by the Court of Justice of the 
European Union, according to which ‘communication to the 
public’ within the meaning of Article 3(1) of Directive 
2001/29/EC requires the protected work to be communicated 
using technical means different from those previously used or, 
failing that, to a ‘new public’, that is to say, a public that was not 
already taken into account by the copyright holders when they 
authorised the original communication of their work to the 
public, still generally applicable, or is the technical means used 
only relevant in cases where content initially received 
terrestrially or via satellite or cable is retransmitted over the 
Internet? 
3. Is there a ‘new public’ for the purposes of the definition of 
‘communication to the public’ under Article 3(1) of Directive 
2001/29/EC when the operator of a retirement home, for profit-
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making purposes, simultaneously retransmits via its cable 
network, unaltered and unabridged, broadcast programmes 
received by means of its own satellite receiving system to the 
television and radio connections in the rooms of the residents of 
the retirement home? For the purposes of this assessment, is it 
relevant whether or not residents are able to receive the television 
and radio programmes in their rooms terrestrially, irrespective of 
the cable transmission? Furthermore, for the purposes of this 
assessment, is it relevant whether the right holders already 
receive remuneration for consenting to the original broadcast? 
Grounds: 
1 A. The applicant is the Gesellschaft für musikalische Aufführungs- und 
mechanische Vervielfältigungsrechte (GEMA). It exercises the rights of use 
granted to it by composers, songwriters and music publishers under copyright. 
2 The defendant operates a retirement/nursing home in Dahn, Germany, which has 
88 single rooms and 3 double rooms in 4 residential areas for nursing care. 89 
elderly persons who are reliant on care live permanently at the home. In addition 
to accommodation, they also receive extensive nursing assistance and care. As 
well as nursing care accommodation, the defendant’s establishment also has 
various communal areas, such as dining rooms and day rooms. 
3 The defendant receives broadcast programmes (television and radio) in the 
establishment via its own satellite receiving system and retransmits these 
simultaneously via its cable network, unaltered and unabridged, to the television 
and radio connections in the rooms of the residents. Thus, all resident rooms and 
nursing rooms at the retirement/care home are supplied with television and radio 
signals. 
4 The applicant holds that the retransmission of broadcast programmes by the 
defendant is subject to licensing and unsuccessfully requested the defendant to 
enter into a licensing agreement. 
5 At the applicant’s request, the Landgericht (Regional Court) ordered the 
defendant, on pain of penalty set out in more detail, 
to refrain from retransmitting, without the applicant’s consent, broadcast works of 
musical art with or without text from the applicant’s repertoire as part of a 
programme that is retransmitted simultaneously, unaltered and unabridged, via the 
cable network located at the establishment (…) operated by the defendant, in 
particular from the satellite receiving system to connections in the resident and 
nursing rooms. 
6 On appeal by the defendant, the appellate court dismissed the action (Higher 
Regional Court Zweibrücken, GRUR 2023, 722). By its appeal on a point of law 
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(‘Revision’), for which the appellate court granted leave and which the defendant 
seeks to have dismissed, the applicant is pursuing its action. 
7 B. The success of the appeal on a point of law depends on the interpretation of 
Article 3(1) of Directive 2001/29/EC. For that reason, prior to a decision on the 
appeal on a point of law, the proceedings must be stayed and a preliminary ruling 
obtained from the Court of Justice of the European Union pursuant to the first 
paragraph, point (b), and the third paragraph of Article 267 TFEU. 
8 I. The appellate court held that the right to claim injunctive relief asserted by 
the applicant did not exist as there was no ‘communication to the public’. 
9 It found that although there was an act of communication, there was no 
communication to the public because, in the present case, communication was 
restricted to a limited group of people, namely the residents of the establishment 
who, like the members of a property owners’ association, constitute a consistent 
group of people which is structurally very homogeneous and intends to stay 
permanently in the establishment, with a rather low fluctuation rate. 
10 II. The applicant’s appeal against this judgment must be upheld if the 
appellate court has incorrectly held that the retransmission via cable in the present 
case does not constitute communication to the public within the meaning of 
Section 15(2) first sentence and second sentence subparagraph 3, Section 20 and 
Section 20b(1) first sentence of the German Copyright Act (UrhG). The applicant 
is entitled to claim injunctive relief (see B II 1 below). The question of whether, in 
the present case, the cable retransmission meets the conditions for communication 
to the public needs to be clarified in several respects under EU law. First of all, it 
needs to be clarified whether the residents of the defendant’s retirement home are 
an indeterminate number of potential recipients for the purposes of the definition 
of ‘communication to the public’ under Article 3(1) of Directive 2001/29/EC (see 
B II 2 below). It also needs to be clarified whether the definition of 
‘communication to the public’ under Article 3(1) of Directive 2001/29/EC used by 
the Court of Justice of the European Union, is still generally applicable, given the 
nature of the technical means used, or is applicable only in certain cases of 
transmission (see B II 3 below). Finally, it needs to be clarified whether the 
residents of the retirement home constitute, in the present case, a ‘new public’ for 
the purposes of the definition of ‘communication to the public’ under Article 3(1) 
of Directive 2001/29/EC (see B II 4 below). 
11 1. The applicant is entitled to claim injunctive relief pursuant to Section 97(1) 
first sentence UrhG. Authors, performers, broadcasting organisations and film 
producers have the exclusive right to retransmit by cable. In the event of an 
unlawful infringement of their rights, they can claim injunctive relief pursuant to 
Section 97(1) first sentence UrhG (in relation to Section 97(2) UrhG see BGH, 
judgment of 18 June 2020 – I ZR 171/19, GRUR 2020, 1297 [juris para. 9] = 
WRP 2020, 1573 – Broadcasting in holiday homes, with further references). The 
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applicant is exercising this right in its capacity as author on behalf of composers 
and songwriters. 
12 2. First of all, it needs to be clarified whether the residents of a commercially 
operated retirement home who have television and radio connections in their 
rooms, to which the operator of the retirement home simultaneously retransmits 
via its cable network, unaltered and unabridged, broadcast programmes received 
by means of its own satellite receiving system constitute an ‘indeterminate 
number of potential recipients’ for the purposes of the definition of 
‘communication to the public’ under Article 3(1) of Directive 2001/29/EC (first 
question referred for a preliminary ruling). This depends on whether the appellate 
court was correct in holding that the act of exploitation in the present case does 
not constitute communication to the public within the meaning of Section 15(2) 
first sentence and second sentence subparagraph 3, Section 20 and Section 20b(1) 
first sentence UrhG. 
13 a) The exclusive right of the author to communicate their work to the public 
(Section 15(2) first sentence UrhG) includes the right of broadcasting (Section 
15(2) second sentence subparagraph 3 UrhG), i.e. the right to make the work 
available to the public by broadcasting, such as radio and television transmission, 
satellite transmission, cable transmission or similar technical means (Section 20 
UrhG). The right of broadcasting includes the right to cable retransmission 
pursuant to Section 20b(1) first sentence UrhG, i.e. the right to retransmit a 
broadcast work in the context of a simultaneous, unaltered and unabridged 
retransmission of a programme by cable systems or microwave systems (see 
BGH, GRUR 2020, 1297 [juris para. 11] – Broadcasting in holiday homes, with 
further references). The right of cable retransmission is a special case of the right 
of broadcasting and therefore constitutes a special case of communication to the 
public. Pursuant to Section 15(3) first sentence UrhG, communication is deemed 
to be to the public if it is intended for a plurality of members of the public. 
Pursuant to Section 15(3) second sentence UrhG, the public includes anyone who 
is not connected by a personal relationship with the person exploiting the work or 
with the other persons to whom the work is made perceivable or made available in 
non-material form. The same applies to performers, broadcasting organisations 
and film producers, in so far as they enjoy the exclusive right to cable 
retransmission (see Section 78(1) subparagraph 2, Section 87(1) subparagraph 1 
first scenario, Section 94(4) and Section 95 UrhG). 
14 b) The exclusive rights of the authors and beneficiaries of the related rights at 
issue in the present case on account of communication to the public of their works 
and performances by cable retransmission are based on EU directives. The 
concept of ‘communication to the public’ must therefore be interpreted in 
accordance with the provision that is applicable to authors in Article 3(1) of 
Directive 2001/29/EC on the harmonisation of certain aspects of copyright and 
related rights in the information society, and in accordance with the provision that 
is applicable to beneficiaries of rights related to copyright in Article 8(1) of 
Directive 2006/115/EC on rental right and lending right and on certain rights 
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related to copyright in the field of intellectual property (codified version) and the 
relevant case-law of the Court of Justice of the European Union (see BGH, 
judgment of 17 September 2015 – I ZR 228/14, BGHZ 206, 365 [juris paras. 30 to 
41] – Ramses; judgment of 11 January 2018 – I ZR 85/17, GRUR 2018, 608 [juris 
para. 22] – Hospital radio; BGH, GRUR 2020, 1297 [juris para. 11] – 
Broadcasting in holiday homes, each with further references). 
15 c) The concept of ‘communication to the public’ under Article 3(1) of 
Directive 2001/29/EC and Article 8(1) of Directive 2006/115/EC comprises two 
constituent elements, namely an act of communication and the public nature of 
that communication. This concept also requires assessment on an individual basis. 
For the purposes of such an assessment, account has to be taken of several 
complementary criteria, which are not autonomous and are interdependent. Since 
these criteria may, in different situations, be present to widely varying degrees, 
they must be applied both individually and in their interaction with one another 
(established case-law; see CJEU, judgment of 20 April 2023 – C-775/21 and 
C-826/21, GRUR 2023, 717 [juris para. 47 et seq.] = WRP 2023, 681 – Blue Air 
Aviation/ UCMR – ADA and others, with further references). 
16 aa) The appellate court was correct in holding that the retransmission of 
broadcast radio and television programmes by means of a distribution system to 
the rooms of the residents of a retirement/care home constitutes an act of 
communication. 
17 (1) In the light of the principal objective of Directive 2001/29/EC, which is to 
ensure a high level of protection for authors, the concept of communication must 
be understood broadly, namely as including any transmission of protected works, 
irrespective of the technical means or method used. ‘Communication’ requires the 
user to intervene in full knowledge of the consequences of their action – that is to 
say, intentionally and deliberately – in order to provide access to the protected 
work to third parties which they would not have in the absence of the user’s 
intervention. In this regard, it is sufficient that third parties have access to the 
protected work, irrespective of whether or not they use it (BGH, GRUR 2020, 
1297 [juris para. 17] – Broadcasting in holiday homes, with further references). 
18 (2) Accordingly, the retransmission, at issue in the present case, of broadcast 
programmes to the rooms of the residents of a retirement/care home by a technical 
means such as a distribution system is to be regarded as an ‘act of communication’ 
within the meaning of Article 3(1) of Directive 2001/29/EC and Article 8(1) of 
Directive 2006/115/EC. When the programmes are being retransmitted via the 
distribution system, the defendant has intervened in full knowledge of the 
consequences of its action, that is to say, intentionally and deliberately, in order to 
enable the residents of its establishment to access broadcast programmes which 
they would not have had in that form in the absence of its intervention. 
19 bb) Whether the appellate court was correct in holding that, in the present case, 
there is no communication to the public needs to be clarified under EU law. 
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20 (1) The appellate court held that cable retransmission to the rooms of the 
residents of the retirement/care home does not constitute communication to the 
public. Although the criterion of ‘a fairly large number of people’ set out in the 
case-law of the Court of Justice of the European Union is fulfilled where there are 
88 single rooms and 3 double rooms, the fact remains that the residents of the 
establishment are not, as is also required, ‘persons in general’. In the present case, 
the communication is restricted to ‘specific individuals’, since it is to a limited 
group of people. Like the members of a property owners’ association, the 
residents of the establishment form a consistent group of people which is 
structurally very homogeneous and intends to stay permanently in the 
establishment, with a rather low fluctuation rate. The communal areas enable the 
residents to have meals together, to have personal contact with others and to 
interact socially. Unlike at a hotel or a rehab centre, a close bond is established 
between residents as a result of the choice of retirement facility in which to spend 
their final stage of life. The defendant’s providing of short-term care and carer-
replacement care does not do anything to change the nature of the establishment in 
this respect. The fact that the defendant carries out cable retransmission for profit-
making purposes does not alter this assessment. 
21 (2) According to the case-law of the Court of Justice of the European Union, 
the concept of ‘to the public’ is fulfilled only when there is an indeterminate 
number of potential recipients and a fairly large number of people. 
22 There is an ‘indeterminate number of potential recipients’ when the 
communication is to persons in general, i.e. it is not limited to specific individuals 
belonging to a private group (see, in relation to Article 3(1) of Directive 
2001/29/EC, CJEU, judgment of 31 May 2016 – C-117/15, GRUR 2016, 684 
[juris para. 42] – Reha Training/GEMA; see, in relation to Article 8(2) of 
Directive 92/100/EEC [now Directive 2006/115/EG], CJEU, judgment of 
15 March 2012 – C-135/10, GRUR 2012, 593 [juris para. 85] = WRP 2012, 689 – 
SCF/Del Corso; judgment of 15 March 2012 – C-162/10, GRUR 2012, 597 [juris 
para. 34] – PPL/ Ireland). 
23 The criterion of a ‘fairly large number of people’ is intended to indicate that the 
concept of ‘to the public’ encompasses a certain de minimis threshold, which 
excludes from the concept a group of people concerned which is too small or 
insignificant. In order to determine this number of people, the cumulative effect of 
making the works available to potential recipients should be taken into account. In 
this regard, it is important how many people have access to the same work at the 
same time and successively (see CJEU, GRUR 2016, 684 [juris paras. 40 to 44] – 
Reha Training/GEMA; CJEU, GRUR 2023, 717 [juris para. 54] – Blue Air 
Aviation/UCMR – ADA and others, each with further references). 
24 (3) The appellate court was correct in holding that the number of residents in 
the 88 single rooms and 3 double rooms provided by the defendant fulfils the 
criterion of ‘a fairly large number of people’. This assessment is accepted in the 
appeal on a point of law; there is no error of law in this regard. 
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25 (4) The question of whether the appellate court was correct in holding that, in 
the present case, the communication is not made for an indeterminate number of 
potential recipients within the meaning of the case-law of the Court of Justice of 
the European Union, but is restricted to specific individuals belonging to a private 
group, requires clarification under EU law. 
26 (a) The Court of Justice of the European Union has held that guests of a hotel, 
where the operator provides, in its guest bedrooms, television and/or radio sets to 
which the operator transmits a broadcast signal, constitute an indeterminate 
number of potential recipients, in so far 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’ (CJEU, GRUR 2012, 597 [juris, para. 41] – PPL/Ireland). The 
Court of Justice followed the same reasoning in the case of patients of a 
rehabilitation centre (CJEU, GRUR 2016, 684 [juris para. 57] – Reha 
Training/GEMA; with regard to hospital patients see also BGH, GRUR 2018, 608 
[juris para. 34 et seq.] – Hospital radio). In all these cases, access to the services 
being provided is the result of a personal choice of each individual guest to whom 
the service may be offered and is limited only by the capacity of the establishment 
in question. 
27 In contrast, the Court of Justice of the European Union found that patients of a 
dentist for whom background music was played in the waiting room were not 
‘persons in general’ because they constituted a group of persons whose 
composition was very consistent and were thus a determinate group of potential 
recipients, as other persons did not, as a rule, have access to treatment by that 
dentist (CJEU, GRUR 2012, 593 [juris para. 95] – SCF/Del Corso). 
Communication to a clearly defined and closed group of persons holding public 
service functions within a court is not made to an indeterminate number of 
potential recipients either, but to specific individual professionals (see, in relation 
to Article 3(1) of Directive 2001/29/EC, CJEU, judgment of 28 October 2020 – 
C-637/19, GRUR 2020, 1295 [juris para. 28 et seq.] = WRP 2021, 27 – BY 
[Photographic evidence]). 
28 (b) It needs to be clarified whether the mere fact that, as found by the appellate 
court, the group of residents at the establishment is structurally very homogeneous 
and has a rather low fluctuation rate justifies the assumption that communication 
is made only to ‘specific individuals’ and not to ‘persons in general’. The 
Chamber’s opinion is that this question should be answered in the negative, since 
access to the services of the retirement home is fundamentally available to all 
persons to whom the service may be offered and is restricted only by the capacity 
of the home. 
29 Contrary to the view taken by the appellate court, the mere possibility for 
residents to have meals together, to have personal contact with others and to 
interact socially, does not, in itself, justify the conclusion that residents have a 
close bond with one another. In any event, in the context of the analysis to be 
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carried out, the existence of a personal bond between individual residents as a 
result of making use of this possibility would likely merely be a (welcome) by-
product of utilising the defendant’s residential and care services, without the 
entirety of the residents thus becoming a ‘private group’, as required (see CJEU, 
GRUR 2016, 684 [juris para. 57] – Reha Training/GEMA) (see Higher Regional 
Court, order of 10 June 2020 – 24 U 164/19, [juris para. 26]; Higher Regional 
Court Dresden, GRUR-RR 2023, 149 [juris para. 26]). 
30 The Chamber’s opinion is that the provisions of public law relied on in the 
response by the respondent on a point of law, which take account of the fact that 
the residents of a care home are particularly in need of protection and assistance, 
also have no bearing on the classification for the purposes of copyright of the 
cable transmission used to supply residents with broadcast programmes. In this 
regard, the response relies on federal legislation, namely the Act on Residential 
Facilities, which, according to Section 2(1) subparagraph 1 thereof, is intended to 
protect the dignity, interests and needs of residents in residential facilities and 
provides, in Section 10, for the establishment of a residents’ advisory committee 
as a body to represent residents’ interests. In addition, the response refers to the 
Rhineland-Palatinate Act on Types of Residential Facilities and Participation 
(LWTG RP) which, according to Section 1(1) thereof, is intended to protect, 
respect and support elderly people, adults with disabilities and adults in need of 
care, and which requires, in Section 1(1) subparagraph 4 thereof, that the 
participation of these target groups in society and participation in the 
establishment in which they live be strengthened. 
31 3. As regards the other conditions for communication to the public within the 
meaning of Article 3(1) of Directive 2001/29/EC required by the Court of Justice 
of the European Union, it needs to be clarified whether the definition used to date 
by the Court of Justice of the European Union, according to which 
‘communication to the public’ within the meaning of Article 3(1) of Directive 
2001/29/EC requires the protected work to be communicated using technical 
means different from those previously used or, failing that, to a ‘new public’, that 
is to say, a public that was not already taken into account by the copyright holders 
when they authorised the original communication of their work to the public, is 
still generally applicable, or whether the technical means used is only still relevant 
in cases where content initially received terrestrially or via satellite or cable is 
retransmitted over the Internet (second question referred for a preliminary ruling). 
32 a) The Court of Justice of the European Union has required, for the purposes 
of categorising communication as ‘communication to the public’, that the 
protected work be communicated using technical means different from those 
previously used or, failing that, to a ‘new public’, that is to say, a public that was 
not taken into account by the copyright holders when they authorised the original 
communication of their work to the public (CJEU, judgment of 7 August 2018, – 
C-161/17, GRUR 2018, 911 [juris 4] = WRP 2018, 1052 – Land Nordrhein-
Westfalen/Renckhoff, with further references). Where the subsequent 
communication is by means of specific technical means different from those used 
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for the original communication, it does not need to be examined whether the work 
is communicated to a new public; in such a case, the communication 
automatically requires the authorisation of the author (see CJEU, judgment of 
7 March 2013 – C-607/11, GRUR 2013, 500 [juris paras. 24 to 26] = WRP 2013 
18 ITV Broadcasting/TVC; order of 21 October 2014 – C-348/13, GRUR 2014, 
1196 [juris para. 14] = WRP 2014, 1441 – BestWater International). 
33 However, the Court of Justice of the European Union has held that the 
simultaneous, unaltered and unabridged transmission of broadcasts of the national 
broadcaster by means of cables in the national territory is not subject to 
authorisation, regardless of whether the technical means were different from that 
of the original communication, because there was no ‘new public’ (CJEU, 
judgment of 16 March 2017 – C-138/16, GRUR 2017, 510 [juris paras. 26 to 30] 
= WRP 2017, 682 – AKM). According to one statement by the rapporteur in the 
AKM proceedings, the ‘technical’ aspect was irrelevant in that case (Malenovský, 
medien and recht 3/18, Supplement, p. 14, 17 et seq.). 
34 Also when examining communication to the public in the case of guests in hotels 
(CJEU, judgment of 7 December 2006 – C-306/05, ECR 2006, I-11519 = GRUR 
2007, 225 [juris paras. 37 to 47] – SGAE/Rafael) and pubs (CJEU, judgment of 
4 October 2011 – C-403/08 and C-29/08, ECR 2011, I-09083 = GRUR 2012, 156 
[juris paras. 197 to 199] – Football Association Premier League und Murphy) and 
patients in spa establishments (CJEU, judgment of 27 February 2014 – C-351/12, 
GRUR 2014, 473 [juris paras. 27 to 33] =WRP 2014, 418 OSA/Léčebné lázně) 
and rehab establishments (CJEU, GRUR 2016, 684 [juris paras. 57 to 62] – Reha 
Training/GEMA) the Court of Justice of the European Union only examined the 
‘new public’ aspect, not the ‘technical means’ aspect. 
35 b) The present case concerns specific technical means within the meaning of 
the case-law of the Court, because, according to the findings of the appellate 
court, the defendant receives the broadcast programmes via a satellite receiving 
system and feeds these into its cable network (see CJEU, GRUR 2013, 500 [juris 
para. 26] – ITV Broadcasting/TVC; GRUR2017, 510 [juris para. 26] – AKM). 
However, the technical aspect cannot be decisive – as per the AKM decision – if 
the role of the retransmitter is limited to the mere simultaneous, unaltered and 
unabridged retransmission of the terrestrial signal by means of cables (see 
Malenovský, medien und recht 3/18 – Supplement, p. 14, 17 et seq.). One 
interpretation expressed in the legal literature is that the use of specific technical 
means only justifies the assumption of communication to the public in cases 
where the retransmission of content initially received terrestrially, by satellite or 
cable is over the open Internet, because it is only for online uses that the types of 
communication always require separate authorisation (see Peukert, ZUM 2017, 
881, 887 to 890 [under e]). 
36 4. Finally, having regard to the other conditions for communication to the 
public within the meaning of Article 3(1) of Directive 2001/29/EC required by the 
Court of Justice of the European Union, it needs to be clarified whether there is a 
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‘new public’ for the purposes of the definition of ‘communication to the public’ 
under Article 3(1) of Directive 2001/29/EC when the operator of a retirement 
home, for profit-making purposes, simultaneously retransmits via its cable 
network, unaltered and unabridged, broadcast programmes received by means of 
its own satellite receiving system to the television and radio connections in the 
rooms of the residents of the retirement home. In this context, the question also 
arises of whether it is relevant for the purposes of this assessment whether or not 
residents are able to receive the television and radio programmes in their rooms 
terrestrially, irrespective of the cable transmission and whether the right holders 
already receive remuneration for consenting to the original broadcast (third 
question referred for a preliminary ruling). 
37 a) According to the case-law of the Court of Justice of the European Union, a 
‘new public’ for the purposes of the definition of communication to the public 
under Article 3(1) of Directive 2001/29/EC is a public that was not already taken 
into account by the copyright holders when they authorised the original 
communication of their work to the public (CJEU, GRUR 2018, 911 [juris para. 
24] – Land Nordrhein- Westfalen/Renckhoff, with further references). The Court 
of Justice takes the view that an author who authorises the broadcast of their work 
considers as the public only the owners of reception equipment who receive the 
broadcast personally or within their own private or family circles. The owner of 
reception equipment who, like the operator of the hotel or the owner of the pub in 
the cases submitted to the Court, enables an additional public to listen to or watch 
the work then communicates the work for a new public (see CJEU, GRUR 2007, 
225 [juris para. 41 et seq.] SGAE/Rafael; GRUR 2012, 156 paras. 197 to 199 – 
Football Association Premier League and Murphy; also see BGH, order of 
16 August 2012 I ZR 44/10, GRUR 2012, 1136 [juris para. 18] = 
WRP 2012,1402 – Broadband cables). 
38 The Court of Justice of the European Union has also stated that although it is true 
that the profit-making nature of the transmission of a protective work does not 
determine conclusively whether a transmission is to be categorised as a 
‘communication to the public’ (see CJEU, GRUR 2013, 500 [juris para. 43] – ITV 
Broadcasting/TVC), it is not, however, irrelevant – including for the purpose of 
determining any remuneration due in respect of that transmission (see CJEU, 
GRUR 2012, 156 [juris para. 204] – Football Association Premier League and 
Murphy; GRUR 2016, 684 [juris para. 49] – Reha Training/GEMA). 
39 b) In the present case, it therefore needs to be clarified whether the residents 
of the retirement home operated by the defendant constitute a ‘new public’ 
because they receive the television and radio programmes in their rooms, that is to 
say, personally or within their own private or family circles, and the defendant, 
who is not the original broadcasting organisation, provides broadcast signals to the 
residents in the course of operating the retirement home for profit-making 
purposes. 
REQUEST FOR A PRELIMINARY RULING OF 8. 2. 2024 – CASE C-127/24 
 
12  
40 According to the Chamber, the question of whether the residents of the retirement 
home receive the programmes in their rooms within the meaning of the case-law 
of the Court personally or within their own private or family circles arises even if 
the residents of the retirement home do not belong to a private group within the 
meaning of the case-law of the Court of Justice (see para. 19 et seq. above). 
41 Since the defendant has argued that it is open to residents to receive television and 
radio programmes in their rooms on a terrestrial basis, irrespective of cable 
retransmission, it also needs to be clarified whether this fact has any bearing on 
the legal assessment, because findings may have to be made in this regard. 
42 It also needs to be clarified whether, for the purposes of this assessment, it is 
relevant whether the right holders already receive remuneration for consenting to 
the original broadcast. This concerns right holders who are remunerated by the 
original broadcaster for the broadcasting licence (see Loewenheim/Flechsig, 
Handbuch des Urheberrechts, 3rd Ed. Section 47 para. 31), but not broadcasting 
organisations making the original broadcast themselves, with respect to whose 
related rights the Member States may provide for more far-reaching protection 
with regard to broadcasting and communication to the public in accordance with 
recital 16 of Directive 2006/115/EC. In this respect, the assessment when 
analysing the ‘new public’ criterion could be that, in the case of right holders who 
already receive remuneration for the original broadcast, the residents of the 
retirement home are more likely to belong to the public that the right holders took 
into account when granting consent to publication, compared to in the case of 
broadcasting organisations that have not yet received remuneration for the original 
broadcast and for which a ‘new public’ could be concerned in the event of 
retransmission for profit-making purposes by another organisation. 
 
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