Opinion of the Advocate General — ECLI:EU:C:2016:109
Date: 2016-02-23
Language of the case: German
Subject matter: Right of establishment;Intellectual, industrial and commercial property;Approximation of laws;Freedom to provide services
Procedure: Reference for a preliminary ruling;Reference for a preliminary ruling - decision unnecessary
Origin: Germany

Summary — Judgment of the Court (Grand Chamber), 31 May 2016 1. Approximation of laws — Copyright and related rights — Directives 2001/29 and 2006/115 — Communication to the public — Concept having, in principle, the same meaning in those directives — Broadcast of television programmes by means of television sets installed in the premises of a rehabilitation centre by its operator — Assessment in the light of both those two directives and following the same criteria (European Parliament and Council Directive 2001/29, Art. 3(1); European Parliament and Council Directive 2006/115, Art. 8(2)) 2. Approximation of laws — Copyright and related rights — Directives 2001/29 and 2006/115 — Communication to the public — Concept — Broadcast of television programmes by means of television sets installed in the premises of a rehabilitation centre by its operator — Included (European Parliament and Council Directive 2001/29, Art. 3(1); European Parliament and Council Directive 2006/115, Art. 8(2)) 1. Article 3(1) of Directive 2001/29 on the harmonisation of certain aspects of copyright and related rights in the information society must be applied without prejudice to the application of Article 8(2) of Directive 2006/115 on rental right and lending right and on certain rights related to copyright in the field of intellectual property. In that connection, there is no evidence that the EU legislature wished to confer on the concept of communication to the public a different meaning in the respective contexts of those directives. The different nature of the rights protected under those directives cannot hide the fact that, according to the wording of those directives, those rights have the same trigger, namely the communication to the public of protected works. It follows that in a case in which it is alleged that the broadcast of television programmes by means of television sets that the operator of a rehabilitation centre has installed in its premises affects the copyright and related rights of a large number of interested parties, in particular, composers, songwriters and music publishers, but also performers, phonogramme producers and authors of literary works and their publishers, both Article 3(1) of Directive 2001/29 and Article 8(2) of Directive 2006/115 must be applied, whilst giving the concept of ‘communication to the public’ in both those provisions the same meaning. Therefore, it must be determined whether such a situation constitutes a communication to the public with regards to both Article 3(1) of Directive 2001/29 and Article 8(2) of Directive 2006/115, and in accordance with the same interpretation criteria, in order to avoid contradictory and incompatible interpretations depending on the applicable provision. (see paras 27, 31-34, operative part) 2. Article 3(1) of Directive 2001/29 on the harmonisation of certain aspects of copyright and related rights in the information society and Article 8(2) of Directive 2006/115 on rental right and lending right and on certain rights related to copyright in the field of intellectual property must be interpreted as meaning that the broadcast of television programmes by means of television sets that the operator of a rehabilitation centre has installed in its premises constitutes an act of communication to the public. First, such an operator carries out an act of communication by intentionally broadcasting protected works to its patients by means of television sets installed in several places in that establishment. Second, the body of patients of a rehabilitation centre constitutes a ‘public’, within the meaning of those provisions, since the circle of persons constituted by those patients is not ‘too small or insignificant’, it being understood, in particular, that those patients may enjoy works broadcast at the same time in several places in the establishment and that, in principle, they could not do so without the targeted intervention of the operator of that centre. Furthermore, as far as concerns the payment of royalties for copyright and related rights for the making available of protected works in that centre, those patients were clearly not taken into account when the original authorisation for the work to be made available was given, so that they constitute a new public. Third, the broadcasting of television programmes on television sets, in so far as it is intended to create a diversion for the patients of a rehabilitation centre during their treatment or in the waiting time, constitutes the supply of additional services which, while not having any medical benefit, does have an impact on the establishment’s standing and attractiveness, thereby giving it a competitive advantage. It follows that the broadcasting of television programmes by the operator of a rehabilitation centre has a profit-making nature, capable of being taken into account in order to determine the amount of remuneration due, where appropriate, for such a broadcast. (see paras 54-65, operative part)