Opinion of the Advocate General — ECLI:EU:C:2011:432
Date: 2011-06-29
Language of the case: English
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: Ireland

summary, it must be held that Article 8(2) of Directive 2006/115 is to be interpreted as requiring a hotel operator which provides televisions and/or radios in the hotel bedrooms to which it distributes a broadcast signal to pay equitable remuneration in respect of the fact that it communicates the phonograms used in the broadcasts indirectly to the public, even if the radio and television broadcasters have already paid equitable remuneration for using those phonograms in their broadcasts. VIII – The third question 146. By its third question, the referring court is seeking to ascertain whether Article 10(1)(a) of Directive 2006/115 permits Member States to exempt hotel operators from the obligation to pay ‘a single equitable remuneration’. This would require the indirect communication to the public of phonograms by means of radios or televisions to constitute ‘private use’ within the meaning of that provision. A – Main arguments of the parties 147. In the view of the applicant in the main proceedings, Article 10(1)(a) of Directive 2006/115 is not applicable in a case like the present one. According to the Court’s ruling in SGAE, there is no private use within the meaning of that provision in such a case. The hotel makes commercial use of the phonograms in that, in its own economic interest, it communicates them to the public. The private nature of the use by the hotel customer and the place of use are immaterial. In any case, Article 10 of Directive 2006/115, which as an exception must be given a narrow interpretation, permits only limitations to the right to equitable remuneration and is not, therefore, as extensive an exception as the Irish legislation. Furthermore, that provision does not satisfy the conditions of the three-stage test contained in Article 10(3) of the directive. 148. In the view of Ireland, the Greek Government and the Commission, Article 10(1)(a) of Directive 2006/115 permits a Member State to provide for an exception like the Irish legislation. Ireland and the Greek Government point out, first of all, that the use of radios or televisions by the hotel customer in the hotel bedroom is private, since a hotel bedroom belongs to the private sphere, which is protected under fundamental rights. In the view of Ireland, regard must be had to the individual listener or viewer in the individual bedrooms. The judgment in SGAE is not applicable to the present case. In any event, in that judgment the Court did not consider it to be incompatible that the hotel bedrooms are private in nature, but communication to the public takes place. The Commission claims in this connection that Directive 2006/115 does not provide a definition of the notion of private use and, for that reason, a Member State is free to define certain places as private places for the purposes of Article 10(1) of Directive 2006/115. Furthermore, in the view of Ireland and the Commission, the three-stage test under Article 10(3) of Directive 2006/115 does not preclude the application of Article 10(1)(a) either. B – Legal assessment 149. Article 10(1)(a) of Directive 2006/115 provides that Member States may limit the rights contained in Chapter II of the directive, which include the right to equitable remuneration under Article 8(2) of Directive 2006/115, in the case of private use. 150. That provision must be interpreted as meaning that, under it, the obligation on a hotel operator under Article 8(2) of Directive 2006/115 to pay equitable remuneration for the communication of phonograms to the public may not be limited in a case like the present one. 151. In the context of Article 10(1)(a) of Directive 2006/115, the relevant factor is the assessment of the actual use. In addition, the public or private nature of the use is crucial, but not the public or private nature of the place where such use occurs. (40) 152. The use of the phonograms which gave rise to the right to equitable remuneration under Article 8(2) of Directive 2006/115 in the present case is the use by the hotel operator in the form of communication to the public. In my view, such use cannot come within the exception under Article 10(1)(a) of Directive 2006/115 because use by the hotel operator in the form of communication to the public cannot really be regarded, at the same time, as private use by the hotel operator. The terms ‘private’ and ‘public’ are clearly antonyms. (41) 153. It is irrelevant for the purposes of the present case, on the other hand, whether the conduct of a hotel customer in his hotel bedroom can be regarded as private use. The present case does not concern the application of Article 10(1)(a) of Directive 2006/115 to use by a hotel customer, but to use by the hotel operator. In a case like the present one, the use of phonograms by the hotel operator may constitute communication to the public, whilst it may be private use for the hotel customer. This would also appear to be consistent with the Court’s findings in SGAE, in which it accepted the existence of communication to the public despite pointing out the private nature of hotel bedrooms. (42) 154. It cannot be argued, to counter such an interpretation of Article 10(1)(a) of Directive 2006/115, that that provision is thus deprived of all practical effectiveness. Rather, that provision retains an autonomous scope, in particular with regard to uses which do not constitute communication to the public, but other use, such as fixation within the meaning of Article 7 of Directive 2006/115. 155. Lastly, the approach taken by the Commission, according to which, in the absence of a legal definition of the notion of private use in Article 10(1)(a) of Directive 2006/115, the Member States are free in principle to define certain places as private places for the purposes of that provision, must be rejected. First of all, the notion of private use within the meaning of Article 10(1)(a) of Directive 2006/115 is an autonomous Union law notion which must be given a uniform interpretation throughout the European Union. (43) The absence of a legal definition in the directive does not therefore automatically mean that the Member States have discretion as to the interpretation of the notion of private use. As explained above, in the present case the regulatory intensity of the provision is also not so low that the Member States enjoy a broad margin of discretion in filling out the Union law framework. Rather, the notion of private use is as sharply delimited as the public aspect of communication, since the notions of private and public are mutually exclusive. 156. It must be stated, in conclusion, that Article 10(1)(a) of Directive 2006/115 is to be interpreted to the effect that where a hotel operator communicates phonograms to the public, its obligation to pay equitable remuneration cannot be ruled out under that provision, because in such a case there is no private use by the hotel operator. IX – The fourth question 157. By its fourth question, the referring court is seeking to ascertain whether a hotel operator which provides in a guest bedroom apparatus (other than a television or radio) and phonograms in physical or digital form which may be played on or heard from such apparatus is a ‘user’ making a ‘communication to the public’ of the phonograms within the meaning of Article 8(2) of Directive 2006/115. A – Main arguments of the parties 158. In the view of the applicant in the main proceedings, this question should be answered in the affirmative. According to the Court’s case‑law, in such a case a hotel operator makes a communication to the public in respect of the hotel customers, who would otherwise not have access to those phonograms. It is not a case of mere provision of physical facilities for enabling a communication, which does not amount to communication in accordance with recital 27 in the preamble to Directive 2001/29. 159. In the view of Ireland, the Greek Government and the Commission, this question should be answered in the negative. The Greek Government refers to its arguments with regard to the first question. Ireland and the Commission take the view that it does not constitute communication to the public where the hotel operator provides the hotel customer with players and phonograms and, consequently, the hotel operator is not a user which is required to pay remuneration under Article 8(2) of Directive 2006/115. B – Legal assessment 160. By its fourth question, the referring court is seeking to ascertain whether a hotel operator which provides in its hotel bedrooms players for phonograms and the relevant phonograms in physical or digital form must pay equitable remuneration under Article 8(2) of Directive 2006/115. In its order for reference, it made clear that the proceedings do not concern interactive transmissions or on-demand transmissions. In this connection too, it is relevant whether the hotel operator uses phonograms for communication to the public. I will first examine below the notion of communication (1), before dealing with the public aspect of communication (2). 1. The notion of communication 161. As I have explained above, (44) there is communication within the meaning of Article 8(2) of Directive 2006/115 if there is direct or indirect transmission by any medium, otherwise than by broadcasting, of the sounds or the representations of sounds fixed in a phonogram, including making the sounds or representations of sounds fixed in a phonogram audible. It is not therefore relevant that the sounds fixed in the phonogram are made audible. (45) 162. These conditions for communication within the meaning of Article 8(2) of Directive 2006/115 would thus appear to be satisfied in a case like the present one, where the hotel operator provides the hotel customers with both players and the related phonograms. 163. The Commission argues in this connection that the notion of communication to the public within the meaning of Article 8(2) of Directive 2006/115 may not, in principle, be interpreted more broadly than the notion of communication to the public in Article 3(1) of Directive 2001/29. It must be borne in mind that the European Union legislature intended to provide a higher level of protection for copyright than for the related rights of phonogram producers and performers, and it is therefore contrary to the system to grant phonogram producers and performers more extensive rights under Article 8(2) of Directive 2006/115 than authors under Article 3(1) of Directive 2001/29. For that reason, regard must be had to recitals 23 and 27 in the preamble to Directive 2001/29. 164. Recital 27 in the preamble to Directive 2001/29 does not preclude the existence of communication in a case like the present one, however. It must be construed as meaning that persons providing players, without at the same time controlling access to copyright works, do not make any communication to the public. This is the case, for example, where televisions or radios are sold or rented or where an internet service provider merely provides access to the internet. In a case like the present one, however, the hotel operator does not simply provide the players. Instead, it also deliberately provides hotel customers with phonograms, and thus provides hotel customers with direct access to the sounds fixed in the phonograms. 165. It can be stated, in conclusion, that a hotel operator which provides its customers with not only players, but also the relevant phonograms, makes the copyright works embodied in phonograms accessible and makes the phonograms audible, with the result that there is communication to the public both within the meaning of Article 3(1) of Directive 2001/29 and within the meaning of Article 8(2) of Directive 2006/115. 2. The notion of public 166. As has been explained above, (46) the notion of public in Article 3(1) of Directive 2001/29 and in Article 8(2) of Directive 2006/115 is, in principle, to be interpreted consistently, with the result that the criteria developed by the Court in SGAE may be applied. 167. Even if players and phonograms are provided in physical or digital form, the phonograms are communicated to a new public which, where there is a quick succession of hotel customers, leads to a cumulative effect and thus to very extensive availability. 168. The facts are also comparable in other respects to the facts on which that judgment is based, because a hotel operator which, in full knowledge of the consequences of its action, gives its customers access to the protected works pursues the purpose of entertaining a wider audience. Furthermore, the provision of access to the works in the present case also constitutes an additional service performed with the aim of obtaining some benefit and thus having an influence on the price of rooms. 169. Reference also cannot be made to recital 23 in the preamble to Directive 2001/29 as an argument against the existence of communication to the public within the meaning of Article 8(2) of Directive 2006/115. 170. First of all, that recital is merely intended to make clear that direct representations or performances of the work are not intended to be covered by the notion of communication to the public within the meaning of Article 3(1) of Directive 2001/29. (47) A direct representation or performance of a work does not exist in this case. 171. Secondly, this idea cannot in any case be applied to the communication of a phonogram within the meaning of Article 8(2) of Directive 2006/115. The notion of communication within the meaning of Article 8(2) of Directive 2006/115 must be interpreted having regard to the specific context of that provision and thus having regard to Article 15 in conjunction with Article 2(g) of the WPPT. Under that provision, communication of phonograms exists where the sounds fixed in a phonogram are made audible to the public. Through this definition, the Contracting Parties to the WPPT wished to make clear that communication to the public within the meaning of Article 15 of the WPPT also exists where the phonogram is communicated to an audience which is present at the place of communication of the phonogram. (48) 172. For a fuller discussion of the importance of recital 23 in the preamble to Directive 2001/29 for the notion of communication to the public within the meaning of Article 8(2) of Directive 2006/115, I refer to points 90 to 109 and points 114 to 125 of my Opinion in Case C‑135/10 SCF. 173. In a case like the present one, the communication is therefore also to the public. 3. The notion of user 174. As has been explained above, (49) any person who communicates phonograms to the public within the meaning of Article 8(2) of Directive 2006/115 must be regarded as a user within the meaning of that provision. 4. Conclusion 175. It must, therefore, be stated, in conclusion, that a hotel operator which provides in its hotel bedrooms players for phonograms and the relevant phonograms in physical or digital form uses those phonograms for communication to the public within the meaning of Article 8(2) of Directive 2006/115 and must therefore pay equitable remuneration for them under Article 8(2) of Directive 2006/115. X – The fifth question 176. By its fifth question, the referring court is seeking to ascertain whether, in the event that the fourth question is to be answered in the affirmative, Article 10 of Directive 2006/115 permits Member States to exempt hotel operators from the obligation to pay ‘a single equitable remuneration’ on the grounds of ‘private use’ within the meaning of Article 10(1)(a) of Directive 2006/115. A – Main arguments of the parties 177. The applicant in the main proceedings takes the view that this question should be answered in the negative on the same grounds as those set out in relation to the third question. In the view of Ireland and the Greek Government, this question must be answered in the affirmative. Ireland argues that a case like the present one constitutes private use. The Greek Government refers to the arguments set out in connection with the third question. In the view of the Commission, because of the answer to the fourth question, there is no need to examine the final question. B – Legal assessment 178. The fifth question must be answered in the negative. As is clear from the statements made on the third question, where use takes the form of communication to the public, the limitation in respect of private use under Article 10(1)(a) of Directive 2006/115 is not applicable. XI – Conclusion 179. On the abovementioned grounds, I propose that the Court answer the questions referred as follows: (1) Article 8(2) of Directive 2006/115/EC of the European Parliament and of the Council of 12 December 2006 on rental right and lending right and on certain rights related to copyright in the field of intellectual property (codified version) and of Council Directive 92/100/EEC of 19 November 1992 on rental right and lending right and on certain rights related to copyright in the field of intellectual property is to be interpreted to the effect that a hotel or guesthouse operator which provides televisions and/or radios in bedrooms to which it distributes a broadcast signal uses the phonograms played in the broadcasts for indirect communication to the public. (2) In such a case, the Member States are required, in transposing Directives 2006/115 and 92/100, to provide for a right to equitable remuneration vis-à-vis the hotel or guesthouse operator even if the radio and television broadcasters have already paid equitable remuneration for the use of the phonograms in their broadcasts. (3) Article 8(2) of Directive 2006/115 and of Directive 92/100 is to be interpreted as meaning that a hotel operator which provides its customers, in their bedrooms, with players for phonograms other than a television or radio and the related phonograms in physical or digital form which may be played on or heard from such apparatus uses those phonograms for communication to the public. (4) Article 10(1)(a) of Directive 2006/115 and of Directive 92/100 is to be interpreted to the effect that a hotel or a guesthouse operator which uses a phonogram for communication to the public does not make private use of it and an exception to the right to equitable remuneration under Article 8(2) of Directive 2006/115 is not possible even if the use by the customer in his bedroom has private character. 1 – Original language: German. Language of the case: English. 2 – OJ 1992 L 346, p. 61. 3 – OJ 2006 L 376, p. 28. 4 – Case C‑306/05 [2006] ECR I‑11519. 5 – OJ 2001 L 167, p. 10. 6 – Reproduced in the German Bundesgesetzblatt 1965 II, p. 1245. 7 – See Council Decision 2000/278/EC of 16 March 2000 on the approval, on behalf of the European Community, of the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT) (OJ 2000 L 89, p. 6). 8 – In accordance with the terms used in the TEU and in the TFEU, the expression ‘Union law’ will be used as an umbrella expression for Community law and European Union law. Where individual provisions of primary law are relevant hereinafter, the rules which are applicable ratione temporis will be cited. 9 – Joined Cases C‑6/90 and C‑9/90 Francovich and Others [1991] ECR I‑5357, paragraph 35; Joined Cases C‑46/93 and C‑48/93 Brasserie du pêcheur and Factortame [1996] ECR I‑1029, paragraph 31; and Case C‑568/08 Combinatie Spijker Infrabouw-De Jonge Konstruktie and Others [2010] ECR I-12655, paragraph 87. 10 – OJ 2006 L 372, p. 12. 11 – Case C‑245/00 [2003] ECR I‑1251. 12 – Cited in footnote 4. 13 – Ibid. paragraph 36. 14 – Ibid., paragraph 36. 15 – Ibid., paragraph 37. In this connection, it first cited the judgment in Case C‑89/04 Mediakabel [2005] ECR I‑4891, paragraph 30, in which it interpreted the notion of reception of a television programme by the public, in connection with Article 1(a) of Council Directive 89/552/EEC of 3 October 1989 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities (OJ 1989 L 298, p. 23), as depending on an indeterminate number of potential television viewers. It also invoked the judgment in Case C‑192/04 Lagardère Active Broadcast [2005] ECR I‑7199, paragraph 31, in which it interpreted the notion of communication to the public by satellite, in connection with Article 1(2)(a) of Council Directive 93/83/EEC of 27 September 1993 on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission (OJ 1993 L 248, p. 15), as depending on an indeterminate number of potential listeners. 16 – Ibid., paragraphs 38 and 39. 17 – Ibid., paragraph 40. 18 – Ibid., paragraph 41. 19 – Ibid., paragraph 42. 20 – Ibid., paragraph 43. 21 – Ibid., paragraph 44. 22 – Ibid., paragraphs 45 and 46. 23 – Ibid., paragraph 31. 24 – SENA, cited in footnote 11, paragraph 34. 25 – Ibid., paragraphs 34 to 38. 26 – Case C‑61/94 Commission v Germany [1996] ECR I‑3989, paragraph 52, and SGAE, cited in footnote 4, paragraph 35. See, in this connection, Rosenkranz, F., ‘Die völkerrechtliche Auslegung des EG-Sekundärrechts dargestellt am Beispiel der Urheberrechts’, Europäische Zeitschrift für Wirtschaftsrecht, 2007, p. 238 et seq., p. 239 et seq. 27 – See point 81 of this Opinion. 28 – Reinbothe, J. and Von Lewinski, S., The EC Directive on Rental and Lending Rights and on Piracy, Sweet & Maxwell, 1993, p. 97. 29 – Article 12 of the Rome Convention provides for such a right only in respect of direct transmissions. The Contracting Parties to the WPPT deliberately went further than the Rome Convention in this respect. 30 – See, in this connection, point 67 of the Opinion of Advocate General Sharpston in Case C‑306/05 SGAE, cited in footnote 4, and point 22 of the Opinion of Advocate General La Pergola in Case C‑293/98 Egeda [2000] ECR I‑629. 31 – SGAE, cited in footnote 4, paragraphs 45 and 46. 32 – I refer to points 90 to 109, and points 114 to 125 of my Opinion in Case C‑135/10 SCF, in which I address this point of law. 33 – See points 66 to 75 of this Opinion. 34 – See also Walter, M. and Von Lewinski, S., European Copyright Law, Oxford University Press, 2010, p. 989. 35 – WIPO, WIPO Intellectual Property Handbook, 2004, p. 318. 36 – For a discussion of the questions of how the notion of public within the meaning of Article 3(1) of Directive 2001/29 is to be interpreted in the case of auto-reception equipment and whether that interpretation can be applied to the notion of public within the meaning of Article 8(2) of Directive 2006/115, see points 114 to 125 of my Opinion in Case C‑135/10 SCF. 37 – For further discussion, I refer to points 128 to 135 of my Opinion in Case C‑135/10 SCF, in which there is a discussion of this point of law. 38 – See point 127 of this Opinion. 39 – See point 78 of this Opinion. 40 – See Mahr, F.E., ‘Die öffentliche Wiedergabe von Rundfunksendung im Hotelzimmer’, Medien and Recht, 2006, p. 372 et seq., p. 376, who points out that the place of communication is not important, but the act of exploitation. The private character of the place depends on technical variables in the individual case. 41 – This is also argued with regard to the relevant pairs of terms under international law; see Ricketson, S. and Ginsburg, J., International Copyright and Neighbouring Rights, Volume I, Oxford, 2nd edition, 2006, paragraph 12.02, though with regard to the Berne Convention. 42 – Cited in footnote 4, paragraphs 50 to 54. 43 – See point 78 et seq. of this Opinion. 44 – See points 85 to 89 of this Opinion. 45 – See point 89 of this Opinion. 46 – See points 94 to 110 of this Opinion. 47 – See the communication from the Commission to the European Parliament pursuant to the second subparagraph of Article 251(2) of the EC Treaty concerning the common position of the Council on the adoption of a directive of the European Parliament and of the Council on the harmonisation of certain aspects of copyright and related rights in the information society (SEC(2000) 1734 final). 48 – Von Lewinski, S., International Copyright and Policy, Oxford University Press, 2008, p. 481. 49 – See points 114 to 117 of this Opinion.