61998CC0293_EN
Opinion of the Advocate-General
Opinion of the Advocate-General
I - The factual and legal background of the main action and the questions referred
1 Hostelería Asturiana SA (hereinafter `HOASA'), the defendant in the main action, owns Hotel de la Reconquista (hereinafter `the Hotel') in which it installed a system for receiving terrestrial and satellite television programmes which it then retransmits internally to the clients occupying its rooms. Once received, the programme signals are amplified and sent down coaxial cables to the televisions in the Hotel bedrooms. Before internal retransmission of the received satellite programmes alone, the frequencies carrying the signals are modified (from very high to lower frequencies) to allow the televisions in clients' rooms to be tuned into the correct channel settings. The Entidad de Gestión de Derechos de los Productores Audiovisuales (Collecting Society for Audio-Visual Producers, hereinafter `EGEDA'), the plaintiff in this case, manages, represents and protects the interests and rights of the producers of audio-visual works and recordings. Taking the view that the service of retransmitting audio-visual recordings and other works contained in the television programmes provided to the Hotel's guests infringes the consolidated law on intellectual property (hereinafter the `Consolidated law'), (1) EGEDA brought an application before the Juzgado de Primera Instancia e Instrucción n. 5 de Oviedo seeking that: (i) HOASA be required to suspend all provision of the said service with immediate effect and be prohibited from resuming it without the plaintiff's specific authority, and (ii) the defendant be ordered to compensate the plaintiff in accordance with the latter's general scale of royalties and on the basis of the number of rooms occupied by the Hotel's clients over the period (unspecified in the referral order) in which the activities contested in the action took place.
2 The referring court considers that the outcome of the main action depends on whether the reception of television signals and their subsequent cable retransmission to the various rooms of a hotel, such as that owned by the defendant, constitutes an act of communication to the public of works covered by intellectual property rights. The right of communication to the public (comunicación pública) falls under the rights of utilisation that are vested in the author alone (Article 17 of the Consolidated law). According to Article 20(1), `communication to the public' is any act whereby a work is made accessible to more than one person without previous transmission of examples of that work to them, unless the communication is of a private nature because it has taken place within a strictly domestic context that does not form part of, and is not connected with, a retransmission network of any kind. Article 122 - which comes under Book II(III) (on intellectual property rights other than copyright) of the Consolidated law - states that the right to authorise communication to the public of audio-visual recordings lies with the producer. Furthermore, the users of audio-visual recordings used in acts of communication to the public mentioned in Article 20(2)(f) and (g) of this Law (see below) must pay a fair one-off fee to the producers of those recordings and to the artists that interpreted or performed them. Intellectual property right management bodies are entitled to exercise the right to this remuneration (Article 122(3) of the Consolidated law).
Article 20(2)(f) and (g) of the Consolidated law also makes clear that acts of communication to the public include in particular: (i) the retransmission of any work broadcast by any body other than the original broadcaster, via any of the means listed under (a) to (e) (2) (Article 20(2)(f)), and (ii) the broadcast or transmission of the transmitted work in a place that is open to the public, by any appropriate means (Article 20(2)(g)). For the purposes of the main action, cable transmission (Article 20(2)(e); footnote 2 above) should be included among the means of retransmission referred to in Article 20(2)(f) of the Consolidated law.
3 The order making the reference shows that the Spanish legislator has literally transposed into the Consolidated law (3) the definitions of `communication to the public by satellite' and `cable retransmission' given in Article 1(2)(a) and (3) 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 (hereinafter `the Directive'). (4) Article 1 of the Directive states in the section that is relevant to this Opinion:
`...
2. (a) For the purposes of this Directive, "communication to the public by satellite" means the act of introducing, under the control and responsibility of the broadcasting organisation, the programme-carrying signals intended for reception by the public into an uninterrupted chain of communication leading to the satellite and down towards the earth.
...
3. For the purposes of this Directive, "cable retransmission" means the simultaneous, unaltered and unabridged retransmission by a cable or microwave system for reception by the public of an initial transmission from another Member State, by wire or over the air, including that by satellite, of television or radio programmes intended for reception by the public' (my italics).
4 Consequently, it is the view of the referring court that if the service HOASA provides to its clients were to be described as the retransmission of broadcast works, the defendant - as the user of audio-visual recordings used for the acts of communication to the public mentioned in Article 20(2)(f) and (g) of the Consolidated law - would have to pay to EGEDA, which acts in the name and on behalf of the producers and the artists who interpreted or performed the works concerned, a fair one-off fee. On 1 June 1998 the court decided, in accordance with Article 177 of the EC Treaty (now Article 234 EC), to refer the following question for a preliminary ruling:
`Is Article 1(2)(a) and (3) of Directive 93/83/EEC to be interpreted as meaning that reception by a hotel establishment of satellite or terrestrial television signals and their cable retransmission to the various rooms of that hotel constitutes an "act of communication to the public" or "reception by the public"?' (5)
5 To conclude that description of the legal background to the main action, I would point out that in accordance with Protocol 28(5) on Intellectual Property in the European Economic Area (hereinafter `Protocol 28'), (6) Spain, like all other Member States, was required to adhere to the Berne Convention for the Protection of Literary and Artistic Works (Paris Act of 24 July 1971 as amended on 28 September 1979; hereinafter `the Convention') by 1 January 1995 and to ensure that its national legislation conformed to the substantive provisions of the Convention by 1 January 1994. (7)
6 Article 11bis(1) of the Convention - concerning (inter alia) the communication to the public of a work broadcast by wire (cable transmission) or rebroadcast (by loudspeaker or analogous instruments) - states that `Authors of literary and artistic works shall enjoy the exclusive right of authorising: ... (ii) any communication to the public by wire or by rebroadcasting of the broadcast of the work, when this communication is made by an organisation other than the original one; (iii) the public communication by loudspeaker or any other analogous instrument transmitting, by signs, sounds or images, the broadcast of the work.'
7 Like the other substantive provisions of the Convention (with the sole exception of Article 6bis which concerns the author's moral rights), Article 11bis is deemed to be an integral part of the Agreement on Trade-Related Aspects of Intellectual Property Rights (hereinafter the `TRIPS Agreement') (8) that forms Annex 1C to the Agreement establishing the World Trade Organisation (hereinafter the `WTO Agreement'), approved on behalf of the Community, in respect of those areas for which it has jurisdiction, by Council Decision 94/800/EC of 22 December 1994. (9) The main aim of the TRIPS Agreement is to strengthen and harmonise the protection of intellectual property internationally. For this purpose it not only refers to international agreements already widely accepted (10) but includes also substantive provisions that refer specifically to those areas of intellectual property that the contracting parties believed were in greatest immediate need of protection. Article 9 of the TRIPS Agreement - in Section 1 (Copyright and Related Rights), Part II (Standards concerning the Availability, Scope and Use of Intellectual Property Rights), which requires WTO members to establish minimum levels of protection - states that `Members shall comply with Articles 1 through 21 of the Berne Convention (1971) and the Appendix thereto'.
II - The arguments of the parties and the observations submitted to the Court by the Member States who have `intervened' and by the Commission
8 In the observations submitted to the Court, EGEDA asserted, primarily, that the reference for a preliminary ruling is inadmissible. In particular, the case does not involve transborder satellite broadcasts or the cable retransmission of programmes that originated in other Member States. Since there is therefore no connection between the parties to the case and Community law, no reference to the latter can be made. (11) Moreover, EGEDA claims that the facts of the case do not fall within the scope of the Directive and consequently the main action must be decided on the basis of national law alone. In the alternative, it requests the Court to declare that activities of the kind involved in this dispute constitute an act of public communication as defined in the Directive.
9 The German, United Kingdom and French Governments have also asserted that the matter raised by the national court should be resolved by application of the relevant national law, (12) because there is nothing in either the order for reference or the Directive (or any other directive on intellectual property) which enables the Court to provide the national court with the interpretation requested.
10 HOASA argues that the service it provided to the hotel clients does not fall under either of the two definitions given in this reference for a preliminary ruling. The defendant claims that it is unclear how the Directive's regulation of communication to the public via satellite, can apply to a completely different area, such as the mere reception and internal retransmission of signals broadcast by third parties. From when the television signals are received by the satellite dish until the moment they are received in the hotel rooms there is no interruption whatever of transmission. Furthermore, as regards the term `reception by the public' as used in Article 1(3) of the Directive, the reference - in Article 8(1) (13) - to cable operators as normal or necessary parties to licencing agreements together with rights holders shows that the cable retransmission of programmes from other Member States, as provided for and regulated by the Directive, must be for a profit-making purpose and must constitute the sole or main purpose of the undertaking. These criteria are not met if retransmission is merely internal, as in this case, where a reception-only `passive' cable system is used. HOASA therefore maintains that the Court should answer the question referred in the negative.
11 The Spanish Government shares that view and states that the main purpose of the Community legislature in adopting the Directive was to remove existing discrepancies between national copyright laws which expose rights holders `to the threat of seeing their works exploited without payment of remuneration' (recital 5). While the provision of transborder television programmes - like other additional services, such as telephone, fax, minibar or an individual bathroom - by a hotel can affect the price at which it rents its rooms, companies like the defendant do not engage in the independent financial exploitation of copyright for profit. Moreover, the hotel's clients are still part of the public, which is entitled to receive the television transmission of the protected work if it has been duly authorised by the copyright holders. The latter will therefore have already received all the remuneration to which they are respectively entitled, the figure probably having been calculated on the basis of the number of potential viewers of the work broadcast to the satellite catchment area. However, the Spanish authorities further argue that there is no communication to the public of protected works if the recipients constitute a closed or restricted group (for example because, as in the case of hotel guests, they are connected by links of personal trust or may enter into mutual relationships), even if the group is a large one.
12 Finally, the Commission denies that there is `communication to the public by satellite' within the meaning of Article 1(2)(a) of the Directive in this case. It maintains that - notwithstanding the basic principle of the Directive (see below, paragraph 14) - the retransmission to the hotel rooms of the television programmes in question after their satellite reception involves interruption of the flow of communication. However, the supply of this service by the defendant could fall within the scope of Article 1(3) of the Directive if the reception of transborder television programmes and their internal cable retransmission by a hotel constitutes reception by the public. According to the Commission, it is the Court's duty to ensure that this provision is uniformly implemented throughout the Community on the basis of its own interpretation, in order to prevent undue distortion in the free provision of services and in free competition within the single market. The Commission asserts that the provisions of the Convention, which contains numerous references to the term `communication to the public', have formed an integral part of Community law since the Agreement on the European Economic Area (hereinafter the `EEA Agreement') came into force. This is because Article 5 of Protocol 28 states that Spain and the other Member States undertake to ensure that the Convention is implemented correctly. At the same time, the Commission has also referred to the case-law to the effect that primary and secondary Community legislation must be interpreted in the light of international public law. The Directive should therefore be interpreted in the light of the substantive provisions of the Convention, even though this may not yet have been `communitarised'. The Commission considers that the uniform interpretation that the Court is asked to give in this case must be based on the term `communication to the public of a received broadcast programme' as this is described in the Glossary of Terms of the Law of Copyright and Neighbouring Rights (14) and in the Guide to the Berne Convention, (15) published by the World Intellectual Property Organisation (WIPO; hereinafter the `Glossary' and the `Guide' respectively). Clients using the televisions in hotel bedrooms constitute a different public from that (the hotel) originally considered by the author at the time the broadcast of the protected work was authorised. Consequently the answer to the question referred should be that - under Article 1(3) of the Directive, interpreted in the light of the Convention - the cable retransmission by a hotel to rooms occupied by its clients of television signals received either by satellite or by cable constitutes not the ordinary reception of programmes but an independent act of retransmission to the public, as a result of which a protected work is transmitted to a new public and therefore requires separate authorisation by the rights holders.
III - Legal analysis
13 I shall commence by examining the foundation for the Commission's assertions. The latter relies on both Article 5 of Protocol 28 and the case-law of the Court concerning the duty to interpret secondary Community law in the light of international law in suggesting that the Court should interpret the provisions of the Directive mentioned by the referring court - in particular Article 1(3) - so that they conform as closely as possible to the relevant substantive provisions of the Convention (see paragraph 12 above). The fact that the Convention is not mentioned in the order for reference clearly does not prevent the following analysis. According to the settled case-law of the Court, when giving a preliminary ruling under Article 177 of the EC Treaty the Court may consider provisions of Community law - which may have been brought to its attention by the Commission (16) - that are not referred to in the request for a preliminary ruling from the national court, so long as they are relevant to the main action. (17)
14 The Directive was adopted on the basis of Article 57 of the EC Treaty (now, after amendment, Article 47 EC), paragraph 2, and Article 66 of the EC Treaty (now Article 55 EC) and aims to remove obstacles to the free movement of television programmes within the Community so far as copyright is concerned. As the preamble to the Directive makes clear, the Community legislator merely set minimum requirements which the Commission and the European Parliament originally intended should be included within the scope of the `Television without Frontiers' Directive. (18) Adoption of the Directive, furthermore, does not prejudice `further harmonisation in the field of copyright and rights related thereto' and protects the right of `Member States to supplement the general provisions needed to achieve the objectives of this Directive by taking legislative and administrative measures in their domestic law' (recitals 33 to 35).
It should also be remembered that Article 1(2)(a) - as indicated in sub-paragraph (b) and recital 14 of the Directive - is intended essentially to prevent the cumulative application of two or more sets of national legislation to a single act of satellite broadcasting of copyright-protected works. In order to remove the legal uncertainties surrounding the rights that would need to be acquired and the resulting obstacles to the transnational transmission of programmes, the Council therefore defined the term satellite communication to the public within the Community. (19) Since the act of communication is deemed to have taken place in the Member State of origin, the author will exercise his exclusive right to authorise broadcast of the work by contract under the law of that Member State. (20) The Directive therefore requires Member States to introduce provisions covering satellite broadcasting rights into their domestic law (see Article 2). (21)
However, a different solution has been adopted in the case of cable retransmission: as the United Kingdom authorities have observed, the Directive does not in this case require the introduction of an analogous exclusive right but assumes that other rights exist in national law (`copyright and related rights') which have not been harmonised or defined, but observance of which the Member States must ensure (Article 8). I would therefore observe that for the purpose of this Opinion, the subject-matter of the main action - the interpretation of broadcasting rights as regards communication to the public by cable of a protected work that has already been broadcast - lies outside the material scope of the Directive, which merely states that this right may be exercised only through a collecting society (Article 9).
15 As the scope for such co-ordination by the Community legislature is of course limited, it is clear why the Directive - which devotes all of Article 1 (Definitions) to clarification of the meaning of a number of fundamental terms used in the rest of the Directive, for the purposes of ensuring the application of its substantive provisions, (`for the purpose of this Directive') - does not define `retransmission', `cable system', `public', `communication to the public' or `reception by the public' (see footnote 5, above). The definitions simply did not seem to be necessary. However, their meaning may be elicited from the international agreements on this subject, including of course the Berne Convention, which, as the Commission has stated, is the original source of many of the terms subsequently used in the Directive. I therefore agree with the applicant and the German, French and United Kingdom Governments that even if we admit that the main action concerns television programmes from other Member States, (22) the preliminary ruling requested by the Juzgado de Primera Instancia e Instrucción n. 5 de Oviedo cannot be given on the basis of the Directive.
16 I have another reason for disagreeing with the Commission's view that a preliminary ruling on this question will require the Directive to be interpreted in the light of the Convention. The case-law of the Court referred to by the Commission in its observations concerns only those international agreements that have been made with the Community. They have formed an integral part of Community law since they came into force and are `acts of the institutions of the Community' within the meaning of Article 177(1)(b) of the EC Treaty. (23) Their provisions also take precedence over secondary Community legislation. `[T]he priority of international agreements concluded by the Community over secondary Community legislation [the Court has held] means that whenever possible the latter should be interpreted in conformity with the agreements_' just as `when secondary Community legislation is open to more than one interpretation, priority should be given to the interpretation under which the legislation conforms to the Treaty'. (24) I believe however that this principle cannot apply to international agreements between Member States that do not bind the Community, as in the case of the Convention. (25)
17 The conclusion to which I have come does not, however, exclude the possibility that the Convention may yet provide a basis for the preliminary ruling to be given to the referring court. During the proceedings before the Court, EGEDA and the Commission have, using different arguments, advanced the theory that the Convention has been `communitarised' and that the Court must therefore ensure that it is uniformly applied throughout the Community. While the Commission refers to Article 5 of Protocol 28 (see paragraph 12 above), (26) the applicant refers, albeit merely incidentally, (27) to the commitments given by the Community when it adhered to the TRIPS Agreement. It is the second argument that convinces me. Article 5 of Protocol 28 imposes on the Member States (and all the EFTA States) (28) an obligation to legislate (adherence to the Convention and adapting national legislation). It is obvious that only when these obligations are fulfilled will the national laws concerned include current laws that conform with the Convention. This, however, is quite different from claiming that the introduction of these obligations will of itself bring the Convention into immediate and full effect under Community law.
18 I find EGEDA's arguments more convincing. The applicant claims that the provisions of the Convention have been subsumed into the TRIPS Agreement, although only for such matters as have been legislated on by Community law at Community level. (29) Consequently, while the Community has not formally adhered to the Convention (and cannot do so, see above, footnote 28), it must comply with Articles 1 to 21 thereof. In the Hermès case the Court decided that it was competent to interpret Article 50 of the TRIPS Agreement. This, you will recall, involved a provision of the Agreement concerning `measures to prevent infringement of any intellectual property right' that, according to the governments who `intervened' in the case, fell within the jurisdiction of the Member States. (30) A similar approach would seem to be even more appropriate here. It is my belief that a decision in the main action is dependent upon interpretation of a substantive provision of the Convention that has been incorporated into the TRIPS Agreement through formal reference and aims to protect the right of communication to the public in the event of the secondary use of works originally broadcast from another Member State. Copyright protection is an area in which the Community has already exercised its authority internally. (31) I therefore believe that there can be no doubt that the Court is competent to give a preliminary ruling on the interpretation of the Convention provisions to which Article 9 of the TRIPS Agreement refers. That is not contradicted by the fact that Article 11bis of the Convention, incorporated into the TRIPS Agreement through Article 9 of the Agreement itself, applies both to situations regulated by national law and to situations regulated by Community law. Here too, `the Community has a certain interest in ensuring that, in order to prevent future differences in interpretation, this provision is given a uniform interpretation, whatever the conditions under which it will be applied'. (32)
19 I believe, however, that the Court's interpretation of Article 11bis of the Convention can apply to the legal position of the applicant in the main action - and therefore to the Court's power to consider that rule during its examination of this referral for a preliminary ruling - only if Article 9 of the TRIPS Agreement has direct effect. I would here note that - although the Court has not been asked to rule on whether Article 9 has direct effect, but only to resolve the question of interpretation referred to it by the Spanish court so that the latter may interpret the relevant national law in the light of the Convention as referred to in the TRIPS Agreement (33) - the provision in question does establish a clear and unconditional principle that the national court can apply. This would thus appear capable of regulating the legal status of individuals (34) provided that the Court finds nothing to contradict that in its examination of the purpose, nature and context of the agreement to which the provision relates. (35)
20 I shall now analyse the question of whether, on the basis of the Convention, the retransmission of broadcast works to hotel rooms via the televisions located in them can be described as a simple act of reception or of broadcast (communication to the public). I must point out first that the approach of national legislators to this problem varies, as does the case-law, often within the same country. It cannot be denied that there is a need for the Court to assume general responsibility for interpreting the substantive provisions of the Convention for the whole Community legal order, as the Commission has said. A useful basis for the interpretation of Article 11bis(1) of the Convention (see above, paragraph 6) is the interpretation developed by the WIPO International Office. (36) With regard to the provision in question here, the Glossary defines the notion of `communication to the public of the reception of a broadcast programme' as follows: `the use of television reception equipment (loudspeakers and reception tubes) outside private rooms, so as to provide access to the transmitted programme to anyone that might be present for whatever reason in the place of reception. Reception equipment is often used in restaurants, shops and similar places to attract the public. The right to broadcast and to receive programmes does not necessarily include the right to give the public access to the programmes. This also applies to programmes received via cable. The necessary authority must generally be requested from the authors' organisations or other bodies responsible for copyright management'. (37) As the Guide observes, `So far as implementation [of Article 11bis(1)(2)] is concerned, we need to know if and how a mediator intervenes in the retransmission of the programme and performs an act of communication to the public. ... The criteria for distinguishing between this form of communication and the simple reception of programmes that are not subject to copyright shall be decided by national legislators'. (38) However, under the Convention, the grant of a television broadcast licence to a broadcaster does not cover any other use of the work - for example, communication to the public of the transmitted programme via loudspeakers or analogous instruments (in this case via television) - by third parties, particularly if this is for profit. This form of communication enables a new public to be reached which differs from the public the author had in mind when he first authorised broadcast in the exercise of his own exclusive right. `In effect, although by definition a broadcast can reach an unlimited number of people, when the author authorises this method of use for 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, possibly for profit, a new section of the receiving public hears [or sees] the work and the communication of the programme via a loudspeaker (or analogous instrument) no longer constitutes simple reception of the programme itself but is an independent act through which the broadcast work is communicated to a new public. Such public reception is subject to the author's exclusive authorisation right.' (39)
21 On the basis of the abovementioned observations in the Guide, I believe that the provision that theoretically applies in this case is not sub-section 2 but the special provision in Article 11(1)(3). (40) The retransmission of the broadcast work to the hotel guests is made technically possible by the fact that the hotel rooms are each equipped with a television set, that is, an `instrument transmitting by sounds or images, analogous to a loudspeaker'. (41) Nevertheless, I would point out that a decision that denies the need for specific authorisation from the copyright holder in such cases would be primarily based on the view that rooms occupied by hotel guests do not constitute places with public access, at least in the strict sense of the term. (42) As the Spanish Government has told the Court (see point 11 above), the cable retransmission of television signals to individual television sets is here an act of communication in a strictly domestic sphere and therefore is reception and not transmission. Furthermore, the increased public criterion to which the Convention, as the Guide itself says, makes subject any act of public communication that must be licensed by the author, is not satisfied here; this is because - if the hotel retransmitting the signals it receives to the various rooms lies within the catchment area of the original transmission - the viewers/guests would in any case have been able to receive the original broadcast of the work using reception equipment located in their own homes, if at the time the hotel was retransmitting the work they had been in their homes. Finally, there is no communication to the public on the other hand because effective reception of the broadcast work depends on an act personally performed by the hotel guest (switching on the television set and tuning in to the original broadcaster). (43)
22 This last conclusion cannot be allowed to stand because it contradicts one of the fundamental principles of copyright: copyright holders are remunerated on the basis not of the actual enjoyment of the work but of a legal possibility of that enjoyment. For example, publishers must pay royalties to authors for their novels on the basis of the number of copies sold, whether or not they are ever read by their purchasers. Similarly, hotels that are responsible for the - simultaneous, uncut and unchanged - internal cable retransmission of an original satellite broadcast cannot refuse to pay the author the remuneration due to him by maintaining that the broadcast work was not actually received by the potential viewers who have access to the televisions in their rooms. (44) On the other hand it is all too clear - given that such retransmission is not just a technical means to ensure or improve reception of the original broadcast in the catchment area, as in the case, for example, of the installation and use of transceivers - that HOASA gave the hotel guests access to the protected work. If the defendant had not made secondary use of the broadcasts, the clients - although physically within the satellite catchment area - would not have been able to enjoy the broadcast work in any other way; they therefore constitute, in this sense, a `new' public that differs from the primary broadcast public.
23 However, I believe it is also necessary to remove from the analysis an obvious misunderstanding concerning the private nature of the retransmission of primary television broadcasts to hotel rooms. I certainly do not dispute the fact that, so far as the protection of the personal rights guaranteed by the constitutions not only of Member States but also of all democratic States is concerned, a hotel room forms part of the purely private or domestic sphere of a person and his family. Nevertheless, the legal boundary between the private and the public is not necessarily the same in the area of copyright protection. (45) It is no chance that the criterion for establishing the public or private nature of a room is foreign not just to the letter but also to the spirit of Article 11bis of the Convention, which requires authorisation by the author not for retransmission to places that are public or are open to the public but for acts of communication in which the work is made accessible to the public. For this purpose the term `public' is not of fundamental importance in defining an act of communication as public, because it traditionally means the absence of special personal relationships between members of a group of persons or between group members and the organiser. (46)
24 What criterion do I therefore suggest that the Court should adopt in the matter before it to distinguish between communications that are to the public and those that are not? In my opinion, the Convention lays down the principle that the author must authorise all secondary use of the broadcast work if this gives rise to independent economic exploitation for financial profit by the person responsible (47) and also relates to the economic importance of the new public (paragraph 22 above), which is the group of persons to whom the particular act of communication via the television is addressed. The criterion I have indicated gives us, for example, a cogent explanation for there being no communication to the public if the protected work is made accessible by the direct user of the television to his family circle or friends: in such cases there is no secondary use of the broadcast work by a third party but instead the equipment for receiving the primary transmission is shared, at no financial profit to the interested party.
25 The Spanish authorities have denied that an undertaking in HOASA's position would be seeking financial profit when making the broadcast works accessible to its clients. Its arguments do not convince me however. Even if there is no extra charge to guests (in the form of a supplementary charge or an extra charge included in the cost of the overall service provided) for the internal retransmission service to rooms, there can be no doubt that this constitutes an economically quantifiable benefit to the hotel responsible for the secondary use as a client facility. Furthermore, it is common knowledge that the inclusion of a cable television retransmission service in the services a hotel offers its clients, together with the number of channels available, is one of the normal criteria used to classify hotels by category and thus affects the prices they can charge. (48) Broadcast third party works therefore undeniably contribute to the general level of hotel services offered by a company such as the defendant.
26 In this case it is perhaps the second matter I have raised (paragraph 24) that is hardest to prove. It could be argued that the economic weight of the guests of a hotel room is so slight that they cannot constitute a `new' public that differs from the primary transmission public. Consequently the retransmission of the broadcast work by television does not have the economic importance necessary to constitute an independent act of communication. This rigid approach appears to be changing, however, under the influence of recent national court rulings that are based on the `spatial accumulation' (räumliche Kumulation) view. (49) This holds that all the clients in a hotel at a given time constitute the `public' within the meaning and for the purpose of copyright. (50) In other words the `spatial discontinuity' of the individuals involved, who constitute the circle of addressees to which the work is made accessible by the person responsible for each act of secondary use, is not large enough to negate the economic importance of the new public reached (if only potentially, in the sense of a mere legal possibility; see paragraph 22 above).
27 Since the original broadcaster and the persons effecting the communication via television of an already broadcast work engage in acts of economic exploitation that are different and independent of each other, the bases for the claims advanced by copyright holders in both cases will also be completely separate. (51) This consequently overturns the argument that authors cannot lawfully claim dual remuneration for `the same act' of broadcast of a protected work (paragraph 11 above). I therefore believe that when deciding the main action, the court which made the reference for a preliminary ruling must apply the principle whereby the retransmission by a hotel of a work broadcast by satellite or terrestrial television signals from another Member State to its guests via the televisions in each of its rooms constitutes communication to the public and therefore must be separately authorised by the copyright holders of the protected work.
Conclusion
For the reasons given above, I propose that the Court should answer the question referred for a preliminary ruling by the Juzgado de Primera Instancia e Instrucción n. 5 de Oviedo as follows:
(1) The question of whether the reception by a hotel of protected works broadcast by satellite or terrestrial television signals from another Member State and the subsequent retransmission by cable of the programme signals received to the televisions located in the bedrooms of the same hotel constitutes an act of communication to the public cannot be resolved on the basis of Council Directive 93/83/EEC of 27 September 1993 on the co-ordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission.
(2) The reception by a hotel of protected works broadcast by satellite or terrestrial television signals from another Member State and the subsequent retransmission by cable of the programme signals received to the televisions located in the bedrooms of the same hotel constitutes an act of communication to the public within the meaning of Article 11bis of the Berne Convention for the Protection of Literary and Artistic Works (Paris Act of 24 July 1971, as amended on 28 September 1979), as referred to by Article 9 of the Agreement on Trade-Related Aspects of Intellectual Property Rights.
(1) - Real Decreto Legislativo 1/1996, de 12 de abril, por el que se aprueba el texto refundido de la Ley de Propiedad Intelectual, regularizando, aclarando y armonizando las disposiciones legales vigentes sobre la materia (BOE no 97 of 22 April 1996, p. 14369).
(2) - Article 20(2)(a) to (e) of the Consolidated Law concerns: (a) theatre productions, recitals, presentations and public performances of dramatic or musical dramatic works, by whatever means or procedure, (b) the public projection or showing of cinema or other audio-visual works, (c) the broadcast of any work or the broadcast by any other means of signals, sounds or images transmitted by wireless, (d) the broadcast or communication to the public via satellite of any work, and (e) the transmission to the public of any work by wire, cable, optical fibre or analogous method, whether for a consideration or otherwise.
(3) - Article 20(2)(d) and (f) respectively.
(4) - OJ 1993 L 248, p. 15.
(5) - The reference in the question referred for a preliminary ruling to the term `reception by the public' becomes clear if we refer to the Spanish version of Article 1(3) of the Directive (`... la retransmisión por medio de cable o micoroondas para su recepción por el público, de emisiones primarias desde otro Estado miembro ...') or, for example, to the French version, (`retransmission ... pour la réception par le public') and the English version (`retransmission ... for reception by the public'). It has been translated into Italian as `ritrasmissione ... destinata al pubblico' (my emphasis).
(6) - OJ 1994 L 1, p. 194.
(7) - Footnote 26 below. In the case of Ireland alone, Article 5 set the date for compliance by national legislation with the substantive provisions of the Convention as 1 January 1995. All the Member States have adhered to the Convention (140 countries have so to date) and particularly to the version adopted under the Paris Act; only Belgium and Ireland still apply the previous Brussels version (26 June 1948). The Commission has therefore informed the Court that it has commenced proceedings against these two Member States under Article 169 of the EC Treaty (now Article 226 EC).
(8) - OJ 1994 L 336, p. 213.
(9) - OJ L 336, p. 1. Article 65 of the TRIPS Agreement states: ... `no Member shall be obliged to apply the provisions of this Agreement before the expiry of a general period of one year following the date of entry into force of the WTO Agreement'. Since the WTO Agreement came into force on 1 January 1995, the provisions of the TRIPS Agreement became binding on the contracting parties by 1 January 1996 at the latest. I would point out that the WTO Agreement was concluded by the Community and ratified by its Member States, without their respective obligations towards the other contracting parties being apportioned among them. In accordance with the principle of joint competence, as supported by Opinion 1/94 of 15 November 1994 on the `Competence of the Community to conclude international agreements concerning services and the protection of intellectual property' (issued pursuant to Article 228 of the EC Treaty (now Article 300 EC), subparagraph 6; [1994] ECR I-5267, paragraphs 54 to 71 and 102 to 105), both the Community and its Member States have adhered to the TRIPS Agreement. In that Opinion the Court recognised that the Community's competence in the area of intellectual property had so far been exercised to only a limited degree internally through the adoption of common rules upon which international obligations can have an effect. Consequently, there was as yet no basis for exclusive external competence of the Community. Furthermore, the Court stated that the sector relating to the measures to be adopted to secure the effective protection of intellectual property rights was not one within the exclusive competence of the Member States because the Community was certainly competent to harmonise national rules on those matters, in so far as they `affect the establishment or functioning of the common market'.
(10) - In addition to the Berne Convention, see also the Paris Convention for the Protection of Industrial Property (Stockholm Act 14 July 1967, as amended on 2 October 1979).
(11) - See, ex multis, Case C-60/91 Batista Morais [1992] ECR I-2085, concerning the rules in the Treaty on the free movement of people and services.
(12) - France has stated that as Community law now stands, the national courts must interpret and apply the relevant national laws in accordance with Articles 11 and 11bis of the Convention.
(13) - See also recital 27 of the Directive.
(14) - G. Boytha, WIPO Glossary of Terms of the Law of Copyright and Neighbouring Rights - OMPI Glossaire du droit d'auteur et des droits voisins - OMPI Glosario de derecho de autor y derechos connexos, Geneva, 1980.
(15) - C. Masouyé, Guide de la Convention de Berne pour la protection des oeuvres littéraires et artistiques (Acte de Paris, 1971), Geneva, 1978.
(16) - See, inter alia, Case C-280/91 Viessmann [1993] ECR I-971, paragraph 15.
(17) - See, inter alia, Joined Cases 73/63 and 74/63 Handelsvereniging Rotterdam v Minister van Landbouw [1964] ECR 1; Case 70/77 Simmenthal v Amministrazione delle finanze dello Stato [1978] ECR 1453; Case 35/85
Procureur de la République v Tissier [1986] ECR 1207; and Case C-114/91 Claeys [1992] ECR I-6559.
(18) - Council Directive 89/552/EEC of 3 October 1989 on the co-ordination 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 amended by Directive 97/36/EC of the European Parliament and of the Council of 30 June 1997 (OJ 1997 L 202, p. 60). The `Television without Frontiers' Directive was adopted likewise on the basis of Articles 57(2) and 66 of the EC Treaty. See J.C. Erdozain López, Las Retransmisiones por Cable y el Concepto de Público en el Derecho de Autor, Pamplona, 1997, p. 321.
(19) - As Erdozain López has observed, the connection between an act of satellite broadcasting or communication to the public via satellite and a given set of legislation is more a question for public international law than for copyright law in the strict sense (op. cit., footnote 18, pp. 330 and 331).
(20) - See Articles 1(2)(b), (2) and (3)(1) of the Directive. As a consequence of the principle referred to therein, the Directive has rejected `Bogsch's theory', according to which the broadcasting rights of protected works must be acquired for all receiving countries (see recital 7).
(21) - It has been observed that `minimum harmonisation' of the substantive provisions governing copyright has been made necessary by the fundamental decision, on which the Directive is based, to apply only the law of the State in which the broadcaster is established. `Otherwise there could be ... "distorted use" of the freedom to provide services: a broadcaster transmitting from a State in which no authorisation is required for satellite transmission because no voluntary licensing system exists would be able to direct its signal to all the other Member States of the Community, including those in which the same transmission may only be authorised by the author. Such a situation, in addition to leading to unreasonable damage (including financial) to the authors' rights ... would also clearly distort competition. Broadcasters established in States "offering" them more attractive legislation would enjoy an advantage' (see R. Mastroianni, La protezione dei diritti d'autore e dei diritti connessi nelle trasmissioni televisive via satellite e via cavo in Europa, in Rapporto '93 sui problemi giuridici della radiotelevisione in Italia (P. Barile, R. Zaccaria (eds.), Turin, 1994, p. 363, particularly pp. 381 and 382).
(22) - I would point out that according to the Court's case-law on co-operation between the Court and national judges under Article 177 of the EC Treaty, the question of whether all parts of the activity considered in the main action are located within a single Member State will depend on the findings of fact which can be made only by the national court (see inter alia Case 52/79 Procureur du Roi v Debauve [1980] ECR 833, paragraph 9).
(23) - The Court therefore has jurisdiction to give preliminary rulings on the interpretation of such agreements (see inter alia Case 181/73 Haegeman v Belgian State [1974] ECR 449, paragraphs 3 to 6; Case 104/81 Hauptzollamt Mainz v Kupferberg [1982] ECR 3641, paragraphs 12 to 14, and Case C-321/97 Andersson and Wåkerås-Andersson v Swedish State [1999] ECR 3551, paragraph 26.
(24) - Case C-61/94 Commission v Germany [1996] ECR I-3989, paragraph 52. See also Case 92/71 Interfood v Hauptzollamt Hamburg Ericus [1972] ECR 231 at point 6.
(25) - Where the Court, ruling on the interpretation or validity of Community law, has referred to international conventions to which the Community is not a signatory, it has relied on international customary law principles as codified in these conventions. J.-P- Puissochet, La place du droit international dans la jurisprudence de la Cour de justice des Communautés européennes, in Scritti in onore di Giuseppe Federico Mancini, Milan, 1998, vol II. p. 779.
(26) - Article 5 states: `1. The Contracting Parties shall undertake to obtain their adherence before 1 January 1995 to the following multilateral conventions on industrial, intellectual and commercial property:
...
(b) Berne Convention for the Protection of Literary and Artistic Works (Paris Act, 1971);
...
3. Upon entry into force of this Protocol, the Contracting Parties shall comply in their internal legislation with the substantive provisions of the Conventions listed in paragraph 1(a) to (c).'
(27) - According to EGEDA, the Convention has no relevance to the main action because it nowhere refers to the matter raised in this case.
(28) - Although the Community has formally adhered to the EEA Agreement and the active obligations stated in the Agreement specifically refer to the `Contracting Parties', they do not concern the Community as such. Article 2 of the Agreement states that the term `Contracting Parties' as used in the Agreement means in each case, so far as the Community and the Member States are concerned: (i) the Community together with the Member States, (ii) the Community alone, or (iii) the Member States alone, depending on context and jurisdiction, as stated in and regulated by the Treaty. The Community cannot adhere to the Convention since, as in previous versions of the Convention, the Paris Act refers only to the `countries of the Union' [i.e. the States; see guide (op. cit., footnote 15), p. 8] and thus does not appear to allow membership by international organisations. See also the proposed Council decision on Member States' adherence to the Berne Convention that was initially proposed by the Commission [COM(90) 582 def.; OJ 1991 C 24, p. 5] and then withdrawn when not approved as a result of the extraordinary transfer of jurisdiction that a decision of this nature would have entailed. From the logical and semantic viewpoints too the Community cannot be the recipient of an order to `conform respective national legislations'.
(29) - See above, footnote 9. R. Mastroianni, Diritto internazionale e diritto d'autore, Milan, 1997, pp. 174-177; also A. Bercovtiz, Copyright and Related Rights, in C.M. Correa, A.A. Yusuf (eds.), Intellectual Property and International Trade: The TRIPS Agreement, London, 1998, pp. 148 and 149.
(30) - Case C-53/96 Hermès International v FHT Marketing Choice [1998] ECR I-3603, paragraphs 22 to 29. The Court based its jurisdiction on two facts: firstly, Article 50 requires the judicial authorities of the Contracting States to be empowered to adopt `provisional measures' to protect the interests of the holders of the trade-mark rights conferred under the law of the said States, and secondly under Article 99 of Regulation No 40/94 on the Community trade mark, which came into effect when the WTO Charter was signed, the rights arising from the Community trade mark can be protected by adopting `provisional and protective measures'. While the measures referred to in this provision and the associated procedural rules are those established under the national law of the Member State concerned, so far as this covers national trademarks, since the Community is a contracting party to the TRIPS Agreement which concerns the Community trade mark, the courts referred to in Article 99 must apply national law when issuing provisional measures to protect the rights arising from a Community trade mark and must do so, so far as this is possible, in the light of the letter and the purpose of Article 50 of the TRIPS Agreement. Furthermore, in that case Advocate General Tesauro concluded that the Court had jurisdiction to give a preliminary ruling on all the provisions of the TRIPS Agreement to ensure that they are uniformly interpreted and implemented. The Advocate General noted that: (i) the provisions of a single agreement may be interconnected; (ii) it is in the Community's interest to avoid any international liability incurred as a result of infringements by one or more Member States; (iii) Member States and the Community institutions are under an obligation to co-operate not only when negotiating and drawing up convention provisions in this area but also where their implementation is concerned; (iv) the Treaty provides for a judicial review mechanism to operate as a guarantee that relies on the simultaneous support of the Community court and the national courts, so that the Community legal system appears as essentially a unified one whilst being characterised by the simultaneous application of provisions of diverse origins (international, Community and national); see Opinion of Advocate General Tesauro of 13 November 1997 in Hermès, cited above, at points 20 and 21).
(31) - In addition to Directive 93/83, to which this request for a preliminary ruling refers, the Council has also adopted a number of other directives on the subject of copyright and related rights (Council Directive 91/250/EEC of 14 May 1991 on the legal protection of computer programmes (OJ 1991 L 122, p. 42); Council Directive 92/100/EEC of 19 November 1992 on the rental right and lending right and on certain rights related to copyright in the field of intellectual property (OJ 1992 L 346, p. 61); Council Directive 93/98/EEC of 29 October 1993 on harmonising the term of protection of copyright and certain related rights (OJ 1993 L 290, p. 9). See also Council Directive 96/9/EC of 11 March 1996, on the legal protection of databases (OJ 1996 L 77, p. 20); and the amended draft directive proposed by the European Parliament and the Council on the harmonisation of certain aspects of copyright and related rights in the information society (COM(99) 250 def., OJ 1999 C 180, p. 6)). In its request for an opinion on the Community's jurisdiction to stipulate international service and intellectual property protection agreements (see above, footnote 9, I-5333 to 5335), the Commission stated that the TRIPS Agreement in its entirety agrees internally with a number of secondary Community legislation provisions, and in particular that these directives concern the areas regulated by Articles 10 to 14 of the Agreement. As Mastroianni has pointed out (cf. op. cit., footnote 29 above, p. 175), `by giving as an example a number of the matters included in the TRIPS Agreement on which the Community has not yet regulated in full, the Court referred [in Opinion 1/94] to the partial harmonisation of the laws on trade marks, patents, drawings and models and the protection of confidential technical information but did not refer to copyright, an area in which, as the Commission has exhaustively demonstrated, Community law has already made significant steps. This indicates that, at least in those areas in which harmonisation has already occurred, through its adhesion to the TRIPS Agreement, the Community's commitments to third countries are independent of the commitments assumed by the Member States' (footnote omitted).
(32) - See, as regards Article 50 of the TRIPS Agreement, Hermès (cit. supra, footnote 30), paragraph 32.
(33) - See, as regards Article 50 of the TRIPS Agreement, Hermès (cit. supra, footnote 30), paragraph 35.
(34) - According to the consistent case-law of the Court, a provision in any Community agreement with third countries will have direct effect if its wording and the purpose and nature of the agreement itself imply a clear and specific obligation whose execution and effect are not subject to the adoption of any further acts (see inter alia Case 12/86 Demirel v Stadt Schwäbisch Gmünd [1987] ECR 3719, paragraph 14; Case C-18/90 Office national de l'emploi v Kziber [1991] ECR I-199, paragraph 15; Case C-162/96 Racke v Hauptzollamt Mainz [1998] ECR I-3655, paragraph 31; Case C-262/96 Sürül [1999] ECR I-2685, paragraph 60). Article 9 of the TRIPS Agreement clearly and specifically requires WTO members to implement the substantive provisions of Articles 1 to 21 of the Convention and its Annexes in their national laws. This therefore constitutes an obligation to achieve a specific result and consequently can be relied on by individuals before the national courts without the need for any implementing legislation. I need hardly point out that there is here no question of Article 11bis of the Convention being relied on before the national court in this case because the applicant's claim is based on the relevant provisions of Spanish law. Article 11bis is merely a Community parameter for interpreting the term `communication to the public' domestic law, and does not provide immediate protection for the asserted rights of individuals which arise directly from the Convention.
(35) - Advocates General Cosmas and Tesauro have different views on the direct effect of the WTO Charter. The former believes that the provisions of the Charter - particularly those concerning objections and provisions that can be adopted in the event of extraordinary difficulties, together with the settlement of disputes between contracting parties - remain extremely flexible and therefore have no direct effect (Opinion in Case C-183/95 Affish v Rijksdienst [1997] ECR I-4317, paragraph 119). In the more recent Hermès case, Advocate General Tesauro stated on the contrary that the changes in the WTO system which now differentiate it from the General Agreement on Tariffs and Trade (GATT) system - particularly the changes in its size and scope (with reversal of the relationship between rules and objections) and the changes in the nature and effectiveness of the system for settling disputes (in terms of the binding nature of settlements) - would appear to justify an interpretation that, unlike the interpretation of the GATT Agreement, recognises the direct effect of the WTO Charter and the TRIPS Agreement. This also takes account of the fact that the Court has for some time admitted the direct effect of other agreements signed by the Community which, in terms of flexibility and their negotiated settlement approach to disputes, are essentially analogous to the WTO Charter (Opinion in Hermès, cited above in footnote 30, paragraphs 26 to 30).
(36) - S. Ricketson, The Berne Convention for the Protection of Literary and Artistic Works: 1886-1986, London, 1987, p. 140.
(37) - Boytha (op. cit., footnote 14), p. 44.
(38) - Masouyé (op. cit., footnote 15), pp. 79 and 80 (my translation).
(39) - Ibid. (my translation).
(40) - As Erdozain López observes (op. cit., footnote 18, at p. 210), any other interpretation would imply that subparagraph 3 of the rule cited in the text is superfluous, since communication to the public by loudspeaker or analogous instruments by definition involves a body other than the original body.
(41) - I do not believe, however, that, for the purpose of ruling out the applicability of Article 11(1)(2) of the Convention, it is important that the defendant does not hold a broadcasting licence or is not a cable retransmission company. This is not a requirement under the Convention, which only requires communication to the public of a protected work by a third party mediating between the original television broadcaster and the public. See the judgment of 24 December 1993 of the Netherlands Hoge Raad, Centraal Antennensysteem Pastor Schelstraeteweg v Vereniging BUMA (Eur. Com. Cases, 1995, p. 537, and Revue Internationale du droit d'auteur, 1994, No 162, p. 404), where it was decided that an association of owners or tenants that manages a system for receiving wireless broadcast television programmes which are then retransmitted by cable to subscribers falls under the scope ratione personae of Article 11(1)(2) of the Convention, whatever the size of the cable network involved and whatever the nature, purpose or organisation of the management body.
(42) - As Erdozain López has observed (op. cit., footnote 18, at p. 419, footnote 185), it would seem nevertheless that the definition of a place with public access in the widest sense can apply if access to hotel rooms by the public is interpreted not in the strict sense (whereby a person has already rented the room and is inside it) but in the wider sense, whereby anyone can at any time occupy the room in question and exclude everyone else from it.
(43) - This final criterion has recently been allowed (with others) by the Austrian Oberster Gerichtshof (Judgment 146 of 16 June 1998, GACM v Franz Stoisser Gesellschaft & Co.) to distinguish between the retransmission to televisions located in the general reception areas of hotels and retransmissions to individual hotel bedrooms; the term communication to the public has been limited to the former.
(44) - See the judgment of the Cour d'Appel, Paris, of 20 September 1995, Cable News Network v Novotel (Revue internationale du droit d'auteur, 1996, No 167, p. 277 and Eur. Comm. Cases, 1996, p. 370); also Erdozain López (op. cit., footnote 18 above) p. 155.
(45) - Juzgado de Primera Instancia n. 26 de Madrid, judgment 627 of 12 November 1996, EGEDA v CIGA Internacional Hotels Corporation.
(46) - Erdozain López, (op. cit., footnote 18 above), at pp. 196 and 420.
(47) - S. Abada, too (La transmission par satellite et la distribution par câble et le droit d'auteur in Droit d'auteur, 1989, p. 307, especially pp. 310 and 311), accepts that the financial profit criterion distinguishes between retransmission and ordinary reception of the broadcast work. As the Guide (paragraph 20 above) also indicates, the financial profit criterion is an interpretative tool provided for by Article 11bis(1)(3), since it originally covered communications to the public in bars, restaurants, trains and shops for the purpose of attracting custom.
(48) - GACM (cited above, footnote 43).
(49) - G. Schricker, Videovorführungen in Hotels in urheberrechtlicher Sicht in Festschrift für Walter Oppenhoff zum 80. Geburtstag, 1985, p. 367, in particular pp. 370 and 375.
(50) - French Cour de Cassation, judgment of 6 April 1994, Cable News Network v Novotel Paris (Eur. Comm. Cases, 1994, p. 530); Cour d'Appel de Paris, judgment of 20 September 1995 (cited above, footnote 44), and Audiencia Provincial de Barcelona, judgment of 20 May 1996 (cited by Erdozain López, op. cit. above, footnote 18, p. 414, footnote 169); also, on the matter of the simultaneous retransmission of broadcast sound works to hospital rooms via transmission equipment with built-in listening devices, Bundesgerichtshof, decision of 9 June 1994, GEMA v L. Hospital in A. (Revue internationale du droit d'auteur, 1995, No 165, p. 302). A somewhat different view forms the basis for case-law that interprets the term communication to the public as being related to time, holding that the requirement that the broadcast work must be accessible to more than one person can be met by different guests using the same room at different times (`accumulation over time'; zeitliche Kumulation). As a result, the term `attendant public' must be replaced by `sequential public': M. Walter, Die Hotel-video-Systeme aus urheberrechtlicher Sicht, in Medien und Recht, 1984, Archiv 9; Spanish Supreme Court, judgment of 11 March 1996, Hotel Blanco don Juan v SGAE (RJ, 1996, 2413) and more recently Juzgado de Primera Instancia n. 5 de Santander, judgment 308 of 31 July 1998, EGEDA v Hotel Real. According to Erdozain López, the place and time components of the term `public' - for which an authoritative legal precedent exists in the 1976 US Copyright Act, Section 101 of which includes under the definition of `public performance or display of a work' the communication to the public of the performance or displayed work, whether or not the members of the public receive it in the same place or in separate places and at the same time or at different times [`...to perform or display a work 'publicly' means ... (2) to transmit or otherwise communicate a performance or display of the work to a place [open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered] or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times. ...'] is nothing but a formal legal instrument for adopting the idea of `economically important public' (op. cit., footnote 18 above, p. 419).
(51) - Spanish Supreme Court, judgment of 19 July 1993, SGAE v Olmos Fernandez (RJ, 1993, 6164), concerning communication to the public in a bar of broadcast works. To the opposite effect, see the judgment of 16 June 1998 (footnote 43 above), according to which cable retransmission to hotel rooms constitutes a use of the primary broadcast that is in accordance with its purpose.