Provisional text
JUDGMENT OF THE COURT (First Chamber)
30 April 2026 (*)
( Reference for a preliminary ruling – Intellectual property – Copyright and related rights – Directive 2001/29/EC – Article 3(1) – Communication to the public – Concept – Retransmission of a signal via a cable network of a retirement home – Specific technical means – New public )
In Case C‑127/24,
REQUEST for a preliminary ruling under Article 267 TFEU from the Bundesgerichtshof (Federal Court of Justice, Germany), made by decision of 8 February 2024, received at the Court on 15 February 2024, in the proceedings
Gesellschaft für musikalische Aufführungs- und mechanische Vervielfältigungsrechte eV (GEMA)
v
VHC 2
Seniorenresidenz und Pflegeheim gGmbH,
THE COURT (First Chamber),
composed of F. Biltgen, President of the Chamber, T. von Danwitz, Vice-President of the Court, acting as Judge of the First Chamber, and I. Ziemele (Rapporteur), Judge,
Advocate General: M. Szpunar,
Registrar: R. Şereş, Administrator,
having regard to the written procedure and further to the hearing on 2 April 2025,
after considering the observations submitted on behalf of:
–        Gesellschaft für musikalische Aufführungs- und mechanische Vervielfältigungsrechte eV (GEMA), by T. Winter, Rechtsanwalt,
–        VHC 2
Seniorenresidenz und Pflegeheim gGmbH, by A. Conrad, R. Grzybowska, T. Schubert and
W. Spoerr, Rechtsanwälte,
–        the French Government, by R. Bénard, P. Boccanfuso, B. Dourthe,
B. Fodda and E. Timmermans, acting as Agents,
–        the European Commission, by J. Samnadda and G. von Rintelen, acting as Agents,
after hearing the Opinion of the Advocate General at the sitting on 4 September 2025,
gives the following
Judgment
1        This request for a preliminary ruling concerns the interpretation of Article 3(1) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (OJ 2001 L 167, p. 10).
2        The request has been made in proceedings between Gesellschaft für musikalische Aufführungs- und mechanische Vervielfältigungsrechte eV (GEMA), a copyright collecting society, and VHC 2
Seniorenresidenz und Pflegeheim gGmbH (‘VHC 2’) concerning an alleged obligation to hold a licence for the retransmission of broadcasting programmes within a retirement home.
Legal context
European Union law
3        Recitals 4, 9, 10 and 23 of Directive 2001/29 state:
‘(4)      A harmonised legal framework on copyright and related rights, through increased legal certainty and while providing for a high level of protection of intellectual property, will foster substantial investment in creativity and innovation … and lead in turn to growth and increased competitiveness of European industry …
…
(9)      Any harmonisation of copyright and related rights must take as a basis a high level of protection, since such rights are crucial to intellectual creation. Their protection helps to ensure the maintenance and development of creativity in the interests of authors, performers, producers, consumers, culture, industry and the public at large. Intellectual property has therefore been recognised as an integral part of property.
(10)      If authors or performers are to continue their creative and artistic work, they have to receive an appropriate reward for the use of their work, as must producers in order to be able to finance this work. The investment required to produce products such as phonograms, films or multimedia products, and services such as "on-demand" services, is considerable. Adequate legal protection of intellectual property rights is necessary in order to guarantee the availability of such a reward and provide the opportunity for satisfactory returns on this investment.
…
(23)      This Directive should harmonise further the author's right of communication to the public. This right should be understood in a broad sense covering all communication to the public not present at the place where the communication originates. This right should cover any such transmission or retransmission of a work to the public by wire or wireless means, including broadcasting. This right should not cover any other acts.’
4        Article 3 of that directive, entitled ‘Right of communication to the public of works and right of making available to the public other subject matter’, provides, in paragraphs 1 and 3:
‘1.      Member States shall provide authors with the exclusive right to authorise or prohibit any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them.
…
3.      The rights referred to in paragraphs 1 and 2 shall not be exhausted by any act of communication to the public or making available to the public as set out in this Article.’
German law
5        In accordance with Article 15(2)(3) of the Gesetz über Urheberrecht und verwandte Schutzrechte – Urheberrechtsgesetz (Law on copyright and related rights) of 9 September 1965 (BGBl. 1965 I, p. 1273), in the version applicable to the dispute in the main proceedings (‘the UrhG’), the author’s exclusive right to communicate his or her work to the public, within the meaning of the first sentence of Article 15(2) of the UrhG, includes the broadcasting right, namely, according to Article 20 of the UrhG, the right to make a work available to the public by broadcasting, such as radio and television transmission, satellite transmission, cable transmission or by similar technical means.
6        Under the first sentence of Article 20b(1) of the UrhG, the broadcasting right includes the cable retransmission right, namely the right to rebroadcast a broadcast work, in the context of a simultaneous, unaltered and unabridged retransmission of a programme, by cable systems or microwave transmission systems.
7        According to the first sentence of Article 15(3) of the UrhG, the communication of a work is deemed public if it is intended for a plurality of members of the public. According to the second sentence of that provision, anyone who is not connected by a personal relationship with the person exploiting the work or with the other persons to whom the work is made perceivable or made available in non-material form is deemed to be a member of the public.
The dispute in the main proceedings and the questions referred for a preliminary ruling
8        GEMA is an organisation which carries out the collective management of copyright in the music sector.
9        VHC 2 is the operator of a retirement home, providing permanent accommodation for 89 elderly people reliant on care, who receive full care in the retirement home. That establishment comprises 88 individual rooms and three double rooms, divided into four residential areas, and has, in addition, various communal areas, such as dining rooms and day rooms.
10      By means of its own satellite receiving system,
VHC 2 receives broadcast programmes, namely television and radio programmes, and simultaneously
retransmits them, unaltered and unabridged, through its cable network to connections installed in residents’ rooms and treatment rooms.
11      Taking the view that that retransmission of broadcast programmes requires a licence, GEMA brought an action against VHC 2 for the cessation of the broadcasting of musical works in its repertoire. The Landgericht Frankenthal (Regional Court, Frankenthal, Germany) upheld that action.
12      Ruling on the appeal brought by VHC 2 against that judgment, the Oberlandesgericht Zweibrücken (Higher Regional Court, Zweibrücken, Germany) set aside that judgment and dismissed GEMA’s action on the ground that the retransmission carried out by VHC 2 did not constitute a ‘communication to the public’. That court held, in essence, that, although there was indeed an act of communication, that communication was not, however, intended for the public, since it was restricted to the limited circle of residents of the home concerned, a structurally very homogeneous group, composed of persons residing there on a permanent basis and whose number remained quite stable. Thus, according to that court, the communication in question is limited to specific persons belonging to a private group.
13      Hearing an appeal on a point of law (Revision) brought by GEMA, the Bundesgerichtshof (Federal Court of Justice, Germany), which is the referring court, asks, first, whether the residents of a retirement home, such as the one operated by VHC 2, constitute an indeterminate number of potential recipients, within the meaning of the Court’s case-law on the concept of ‘communication to the public’, referred to in Article 3(1) of Directive 2001/29, or whether they represent, as the Oberlandesgericht Zweibrücken (Higher Regional Court, Zweibrücken) held, a private and limited group of specific individuals.
14      In the second place, although, in the present case, the communication is made using a specific technical means, the referring court has doubts as to the general relevance of taking into account the type of transmission method used for an act to be classified as a ‘communication to the public’. It states that is apparent from the judgment of 16 March 2017, AKM (C‑138/16, EU:C:2017:218, paragraphs 26 to 30), that the Court did not take into account the transmission
method distinct from that of the original communication which was at issue in the case which gave rise to that judgment, namely, as in the present case, a mere simultaneous, unaltered and unabridged retransmission of a signal received by antenna, via a cable system, but focused on the decisive criterion, for the purposes of establishing the presence of a ‘communication to the public’, of the existence of a ‘new public’.
15      Similarly, in the judgments of 7 December 2006, SGAE (C‑306/05, EU:C:2006:764, paragraphs 37 to 47); of 4 October 2011, Football Association Premier League and Others (C‑403/08 and C‑429/08, EU:C:2011:631, paragraphs 197 to 199); of 27 February 2014, OSA (C‑351/12, EU:C:2014:110, paragraphs 27 to 33); and of 31 May 2016, Reha Training (C‑117/15, EU:C:2016:379, paragraph 57), the Court solely examined the latter criterion, without taking into account the technical method of broadcasting used.
16      The referring court notes that, according to one interpretation in the legal literature, that case-law of the Court suggests that the specific technological process justifies accepting the existence of a communication to the public only in cases where the retransmission of content initially received by antenna, satellite or cable takes place via the internet.
17      In the third place, that court asks whether a retransmission such as that at issue in the main proceedings satisfies the condition relating to the ‘new public’ criterion. It also raises the question of the possible relevance, in that regard, of the fact that the residents of the establishment concerned have the possibility – irrespective of that retransmission – of themselves receiving radio and television programmes by antenna in their room and the fact that the rightholders have already received remuneration for the original broadcast.
18      In those circumstances, the Bundesgerichtshof (Federal Court of Justice) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1)      Do residents of a commercially operated retirement home who have television and radio connections in their rooms, to which the operator of the retirement home simultaneously retransmits via its cable network, unaltered and unabridged, broadcast programmes received by means of its own satellite receiving system, constitute an “indeterminate number of potential recipients” for the purposes of the definition of “communication to the public” under Article 3(1) of Directive [2001/29]?
(2)      Is the definition used to date by the [Court], according to which “communication to the public” within the meaning of Article 3(1) of Directive [2001/29] requires the protected work to be communicated using technical means different from those previously used or, failing that, to a “new public”, that is to say, a public that was not already taken into account by the copyright holders when they authorised the original communication of their work to the public, still generally applicable, or is the technical means used only relevant in cases where content initially received terrestrially or via satellite or cable is retransmitted over the internet?
(3)      Is there a “new public” for the purposes of the definition of “communication to the public” under Article 3(1) of Directive [2001/29] when the operator of a retirement home, for profit-making purposes, simultaneously retransmits via its cable network, unaltered and unabridged, broadcast programmes received by means of its own satellite receiving system to the television and radio connections in the rooms of the residents of the retirement home? For the purposes of this assessment, is it relevant whether or not residents are able to receive the television and radio programmes in their rooms terrestrially, irrespective of the cable transmission? Furthermore, for the purposes of this assessment, is it relevant whether the right holders already receive remuneration for consenting to the original broadcast?’
Consideration of the questions referred
The second and third questions
19      By its second and third questions, which it is appropriate to examine together and in the first place, the referring court asks, in essence, whether Article 3(1) of Directive 2001/29 must be interpreted as meaning that the concept of ‘communication to the public’, referred to in that provision, covers the simultaneous,
unaltered and unabridged retransmission, by the operator of a retirement home, of broadcast programmes received by a satellite reception system connected to the television and radio connections installed in residents’ rooms,
via the cable network installed within that home.
20      The referring court seeks, in particular, to ascertain whether such a retransmission falls within the scope of that concept, either as a communication made using ‘specific technical means’ or as a communication to a ‘new public’.
21      In that regard, it must be borne in mind that, under Article 3(1) of Directive 2001/29, Member States are to provide authors with the exclusive right to authorise or prohibit any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them.
22      As the Court has repeatedly held, under that provision, authors have a right which is preventive in nature and which enables them to intervene between possible users of their work and the communication to the public which such users might contemplate making, in order to prohibit such communication (judgments of 15 March 2012, SCF, C‑135/10, EU:C:2012:140, paragraph 75, and of 20 June 2024, GEMA, C‑135/23, EU:C:2024:526, paragraph 17).
23      As regards the content of the concept of ‘communication to the public’, within the meaning of Article 3(1) of Directive 2001/29, it should, as is underlined by recital 23 of Directive 2001/29, be understood in a broad sense, covering all communication to the public not present at the place where the communication originates and, thus, any such transmission or retransmission of a work to the public by wire or wireless means, including broadcasting. It is, indeed, clear from recitals 4, 9 and 10 of that directive that the principal objective of the directive is to establish a high level of protection of authors, allowing them to obtain an appropriate reward for the use of their work, including when a communication to the public takes place (see, to that effect, judgments of 7 December 2006, SGAE, C‑306/05, EU:C:2006:764, paragraph 36, and of 11 April 2024, Citadines, C‑723/22, EU:C:2024:289, paragraph 38 and of the case-law cited).
24      In that regard, in accordance with settled case-law, the concept of ‘communication to the public’, within the meaning of Article 3(1) of that directive, includes two cumulative criteria, namely an act of communication of a work and the communication of that work to a public, and requires an individual assessment (judgments of 22 June 2021, YouTube and Cyando, C‑682/18 and C‑683/18, EU:C:2021:503, paragraph 66, and of 20 June 2024, GEMA, C‑135/23, EU:C:2024:526, paragraph 21).
25      For the purposes of such an assessment, account has to be taken of several complementary criteria, which are not autonomous and are interdependent. Since those criteria may, in different situations, be present to widely varying degrees, they must be applied both individually and in their interaction with one another (judgments of 31 May 2016, Reha Training, C‑117/15, EU:C:2016:379, paragraph 35, and of 20 June 2024, GEMA, C‑135/23, EU:C:2024:526, paragraph 22).
26      Among those criteria, it follows from settled case-law that, in order to be categorised as a ‘communication to the public’, a protected work must, inter alia, be communicated using specific technical means, different from those previously used or, failing that, to a ‘new public’, that is to say, to a public that was not already taken into account by the copyright holder when he or she authorised the initial communication of his or her work to the public (judgments of 8 September 2016, GS Media, C‑160/15, EU:C:2016:644, paragraph 37, and of 20 June 2024, GEMA, C‑135/23, EU:C:2024:526, paragraph 43).
27      In the present case, it should be noted, in the first place, that, as is apparent from the request for a preliminary ruling, the referring court’s questions are based on the premiss that a retransmission of broadcasts such as that at issue in the main proceedings is carried out by a specific technical means, different from that of the original communication.
28      It must, however, be observed that, in establishing the relevance of that criterion for the purposes of classifying the act of an operator as a ‘communication to the public’ within the meaning of Article 3(1) of Directive 2001/29, the Court relied inter alia on Article 3(3) of that directive, under which the authorisation of the inclusion of protected works in a communication to the public does not exhaust the right to authorise or prohibit other communications of those works to the public (see, to that effect, judgment of 7 March 2013, ITV Broadcasting and Others, C‑607/11, EU:C:2013:147, paragraph 23).
29      The Court inferred from this that, by regulating the situations in which a given work is put to multiple use, the EU legislature intended that each transmission or retransmission of a work which uses a ‘specific technical means’ must, as a rule, be individually authorised by the author of the work in question (see, to that effect, judgment of 7 March 2013, ITV Broadcasting and Others, C‑607/11, EU:C:2013:147, paragraph 24).
30      On that basis, the Court held that a distinction must be drawn between, on the one hand, situations in which an operator makes accessible, by its deliberate intervention, a broadcast containing protected works to a new public which was not taken into account by the authors concerned when they authorised the broadcast transmission in question and, on the other hand, situations in which two transmissions are made, under specific technical conditions, using a different means of transmission and each is intended for a public (see, to that effect, judgment of 7 March 2013, ITV Broadcasting and Others, C‑607/11, EU:C:2013:147, paragraphs 38 and 39).
31      It is thus apparent from the case-law of the Court, and in particular from the judgment of 7 March 2013, ITV Broadcasting and Others (C‑607/11, EU:C:2013:147), that it is only if the use of a given technical means entails a new transmission or retransmission of broadcasts, independent of the original communication, that such an act may be regarded as being carried out using a ‘specific technical means’, within the meaning of the case-law cited in paragraph 26 above.
32      As is also apparent from the case-law of the Court, that is the case, in particular, with regard to the retransmission of a terrestrial television broadcast over the internet (see, to that effect, judgments of 7 March 2013, ITV Broadcasting and Others, C‑607/11, EU:C:2013:147, paragraph 26, and of 29 November 2017, VCAST, C‑265/16, EU:C:2017:913, paragraphs 14, 46 and 48). By contrast, the Court has held that that is not the case in a situation such as that which gave rise to the judgment of 7 December 2006, SGAE (C‑306/05, EU:C:2006:764), namely the distribution of a signal by means of television sets to customers in hotel rooms; rather this is an example of the first type of situation referred to in paragraph 30 above (see, to that effect, judgment of 7 March 2013, ITV Broadcasting and Others, C‑607/11, EU:C:2013:147, paragraphs 37 and 38).
33      As the Advocate General observed in point 20 of his Opinion, the latter situation is analogous to that at issue in the main proceedings, in which, as is apparent from the request for a preliminary ruling, the operator of a retirement home – like the operator of a hotel – retransmits, by means of the cable system installed within its establishment, the signal received by its satellite dish to the various areas of that establishment.
34      It follows that a retransmission of broadcasts such as that at issue in the main proceedings cannot be regarded as being done using a ‘specific technical means’, within the meaning of the case-law referred to in paragraph 26 above.
35      In accordance with that case-law, it is necessary, in the second place, to ascertain whether the retransmission in question is intended for a ‘new public’, different from that for which the original broadcasts are intended.
36      In that respect, it should be borne in mind that when the author authorises the broadcast of his work, he considers only direct users, that is, the owners of reception equipment who, either personally or within their own private or family circles, receive the broadcasts (see, to that effect, judgments of 7 December 2006, SGAE, C‑306/05, EU:C:2006:764, paragraph 41, and of 4 October 2011, Football Association Premier League and Others, C‑403/08 and C‑429/08, EU:C:2011:631, paragraph 198).
37      Thus, the Court has held that the clientele of a hotel or a public house, the patients of a spa establishment or a rehabilitation centre, or tenants of apartments in a building that are let on a short-term basis, in particular as tourist accommodation, constitute such a new public (see, to that effect, inter alia, judgments of 7 December 2006, SGAE, C‑306/05, EU:C:2006:764, paragraph 42; of 4 October 2011, Football Association Premier League and Others, C‑403/08 and C‑429/08, EU:C:2011:631, paragraph 199; of 27 February 2014, OSA, C‑351/12, EU:C:2014:110, paragraph 32; of 31 May 2016, Reha Training, C‑117/15, EU:C:2016:379, paragraph 61, and of 20 June 2024, GEMA, C‑135/23, EU:C:2024:526, paragraph 44).
38      In such circumstances, the Court has held, in essence, that the addressees of the communication constituted a ‘new public’, since, as a rule, they enjoy the protected work solely because of the intervention of the operator of the establishment concerned, which gives them, in full knowledge of the consequences of its conduct, access to that work when they are within the
broadcast catchment area of that work.
39      That Court has, however, held that this would not be the case if the apartments in a building are let to tenants who establish their residence there, who cannot be regarded as a ‘new public’, within the meaning of the case-law cited in paragraph 26 above (see, to that effect, judgment of 20 June 2024, GEMA, C‑135/23, EU:C:2024:526, paragraph 45).
40      That situation is comparable to that at issue in the main proceedings, in which, as is apparent from the request for a preliminary ruling, the residents of a retirement home live there on a permanent basis. Accordingly, it must be held that such residents do not constitute such a ‘new public’.
41      That conclusion is not called into question by the argument that, unlike the owner of a dwelling which he or she lets, the operator of a retirement home provides several services to the residents, as those residents have less autonomy. As the Advocate General observed, in essence, in points 37 to 39 of his Opinion, in both cases the addressees of the retransmission of the broadcasts concerned, as owners
of the reception equipment which receive those broadcasts in their private sphere, form part of the public targeted by the copyright holders when those rightholders authorised the initial communication to the public of their works in the form of broadcasting.
42      Consequently, it must be held that, by retransmitting television and radio broadcasts received by means of a satellite dish
to the rooms of a retirement home, via a cable system, the operator of such a home is not making a ‘communication to the public’ within the meaning of Article 3(1) of Directive 2001/29.
43      In that regard, the fact, referred to by the referring court, that the activity of such an operator is carried out for profit, is not decisive. That profit-making nature, while certainly not irrelevant, is not however necessarily an essential condition for the very existence of such a communication (see, to that effect, judgment of 20 June 2024, GEMA, C‑135/23, EU:C:2024:526, paragraph 24 and the case-law cited).
44      Lastly, it should be added that such an interpretation does not disregard the objectives of Directive 2001/29, referred to in paragraph 23 above. As the Advocate General observed, in essence, in point 35 of his Opinion, to recognise, in circumstances such as those at issue in the main proceedings, the existence of a ‘communication to the public’, within the meaning of Article 3(1) of Directive 2001/29, would result in the copyright holders being given undue remuneration, whereas, as recital 10 of Directive 2001/29 expressly states, under that directive, they should be guaranteed only appropriate remuneration for the use of their works (see, to that effect, judgment of 4 October 2011, Football Association Premier League and Others, C‑403/08 and C‑429/08, EU:C:2011:631, paragraph 108).
45      In the light of the foregoing considerations, the answer to the second and third questions is that Article 3(1) of Directive 2001/29 must be interpreted as meaning that the concept of ‘communication to the public’, referred to in that provision, does not cover the simultaneous, unaltered and unabridged retransmission, by the operator of a retirement home, of broadcast programmes received by a satellite reception system connected to the television and radio connections installed in residents’ rooms,
via the cable network installed within that home.
The first question
46      In view of the reply given to the second and third questions, it is unnecessary to reply to the first question.
Costs
47      Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
On those grounds, the Court (First Chamber) hereby rules:
Article 3(1) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society
must be interpreted as meaning that the concept of ‘communication to the public’ referred to in that provision does not cover the simultaneous, unaltered and unabridged retransmission, by the operator of a retirement home, of broadcast programmes received by a satellite reception system connected to the television and radio connections installed in residents’ rooms, via the cable network installed within that home.
[Signatures]
*      Language of the case: German.