Opinion of the Advocate General — ECLI:EU:C:2006:479
Date: 2006-07-13
Language of the case: Spanish
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Right of establishment;Intellectual, industrial and commercial property;Approximation of laws;Freedom to provide services;Copyright and related rights
Procedure: Reference for a preliminary ruling
Origin: Spain

Summary of the Judgment Approximation of laws – Copyright and related rights – Directive 2001/29 – Harmonisation of certain aspects of copyright and related rights in the information society – Communication to the public – Concept (European Parliament and Council Directive 2001/29, Art. 3(1)) The mere provision of physical facilities, such as that of television sets installed in hotel rooms, does not as such amount to a communication to the public within the meaning of Directive 2001/29 on the harmonisation of certain aspects of copyright and related rights in the information society. On the other hand, the distribution of a signal enabling works to be communicated by means of those 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. As is explained in the Guide to the Berne Convention for the Protection of Literary and Artistic Works, when the author authorises the broadcast of his work, he considers only direct users, that is, the owners of reception equipment who, either personally or within their own private or family circles, receive the programme. If reception is for a larger audience, by an independent act through which the broadcast work is communicated to a new public, such public reception falls within the scope of the author’s exclusive authorisation right. The clientele of a hotel forms such a new public, inasmuch as the transmission of the broadcast work to that clientele using television sets is not just a technical means to ensure or improve reception of the original broadcast in the catchment area. On the contrary, the hotel is the organisation which intervenes, in full knowledge of the consequences of its action, to give access to the protected work to its customers. The private nature of hotel rooms does not preclude a signal from constituting communication to the public. (see paras 41-42, 47, 54, operative part 1-2)