Case C-162/10

Phonographic Performance (Ireland) Limited

v

Ireland and Attorney General

(Reference for a preliminary ruling from the High Court (Commercial Division) (Ireland))

‛Copyright and related rights — Directive 2006/115/EC — Articles 8 and 10 — Concepts of ‘user’ and ‘communication to the public’ — Installation in hotel bedrooms of televisions and/or radios to which the hotelier distributes a broadcast signal’

Summary of the Judgment

A hotel operator which provides in guest bedrooms televisions and/or radios to which it distributes a broadcast signal is a ‘user’ making a ‘communication to the public’ of a phonogram which may be played in a broadcast for the purposes of Article 8(2) of Directive 2006/115 on rental right and lending right and on certain rights related to copyright in the field of intellectual property. Although the guests of such a hotel are in the area covered by the signal conveying the phonograms, they are able to listen to those phonograms only as a result of the deliberate intervention of that operator. Its role is thus indispensable. The guests of such a hotel constitute an indeterminate number of potential listeners, in so far as the access of those guests to the services of that establishment is the result of their own choice and is limited only by the capacity of the establishment in question. In such a situation they are thus ‘persons in general’. Further, the guests of a hotel constitute a fairly large number of persons, so that they must be considered to be a public. Finally, the guests of a hotel may be described as ‘targeted’ and ‘receptive’. Indeed, the action of the hotel by which it gives access to the broadcast work to its customers constitutes an additional service which has an influence on the hotel’s standing and, therefore, on the price of rooms. Moreover, it is likely to attract additional guests who are interested in that additional service. It follows that, in the present case, the broadcasting of phonograms by a hotel operator is of a profit-making nature. (see paras 40-45, 47, operative part 1)

A hotel operator which provides in guest bedrooms televisions and/or radios to which it distributes a broadcast signal is obliged to pay equitable remuneration under Article 8(2) of Directive 2006/115 on rental right and lending right and on certain rights related to copyright in the field of intellectual property for the broadcast of a phonogram, in addition to that paid by the broadcaster. When a hotel operator communicates a broadcast phonogram in its guest bedrooms, it is using that phonogram in an autonomous way and transmitting it to a public which is distinct from and additional to the one targeted by the original act of communication. Moreover, the hotel operator derives economic benefits from that transmission which are independent of those obtained by the broadcaster or the producer of the phonograms. By using the word ‘single’ in that provision, the European Union legislature merely wished to make clear that it is not necessary for the Member States to make provision for the user to pay separate remuneration several times for the same act of communication to the public, as that single remuneration will, as is clear from the second sentence of that provision, be shared amongst the different beneficiaries of the equitable remuneration, that is to say, the performers and the phonogram producers. The conjunction ‘or’ in the expression ‘by wireless means or for any communication to the public’ must be interpreted as meaning that remuneration is due both in the case of a broadcast and in the case of communication to the public. (see paras 51, 54, 55, operative part 2)

A hotel operator which provides in guest bedrooms, not televisions and/or radios to which it distributes a broadcast signal, but other apparatus and phonograms in physical or digital form which may be played on or heard from such apparatus, is a ‘user’ making a ‘communication to the public’ of a phonogram within the meaning of Article 8(2) of Directive 2006/115 on rental right and lending right and on certain rights related to copyright in the field of intellectual property. It is therefore obliged to pay ‘equitable remuneration’ under that provision for the transmission of those phonograms. (see para. 69, operative part 3)