Case C‑641/15

Verwertungsgesellschaft Rundfunk GmbH

v

Hettegger Hotel Edelweiss GmbH

(Request for a preliminary ruling from the Handelsgericht Wien)

(Reference for a preliminary ruling — Intellectual property — Directive 2006/115/EC — Article 8(3) — Exclusive right of broadcasting organisations — Communication to the public — Places accessible to the public against payment of an entrance fee — Communication of broadcasts by TV sets installed in hotel rooms)

Summary — Judgment of the Court (Second Chamber), 16 February 2017

Approximation of laws — Copyright and related rights — Directive 2006/115 — Rental and lending right in respect of copyright work — Broadcasting and communication to the public — Exclusive right of broadcasting organisations — Communication to the public made in places accessible to the public against payment of an entrance fee — Meaning — Communication of broadcasts by TV sets installed in hotel rooms — Not included

(European Parliament and Council Directive 2006/115, Art. 8(3))

Article 8(3) of Directive 2006/115/EC of the European Parliament and of the Council of 12 December 2006 on rental right and lending right and on certain rights related to copyright in the field of intellectual property must be interpreted as meaning that the communication of television and radio broadcasts by means of TV sets installed in hotel rooms does not constitute a communication made in a place accessible to the public against payment of an entrance fee.

The fact remains that, as the Advocate General stated in points 26 to 30 of his Opinion, the price of a hotel room is not, like the price of a restaurant service, an entrance fee specifically requested in return for a communication to the public of a TV or radio broadcast, but constitutes the consideration for, principally, the accommodation service, to which, according to the hotel category, certain additional services are added, such as the communication of TV and radio broadcasts by means of receiving equipment in the rooms, which are normally included in the price of the overnight stay.

Therefore, although the distribution of a signal by means of TV and radio sets installed in hotel rooms constitutes an additional service which has an influence on the hotel’s standing and, therefore, on the price of rooms, as pointed out by the Court in its judgments of 7 December 2006, SGAE (C‑306/05, EU:C:2006:764, paragraph 44) and of 15 March 2012, Phonographic Performance (Ireland) (C‑162/10, EU:C:2012:141, paragraph 44), in the context of the examination of the existence of an act of communication to the public within the meaning of Article 3(1) of Directive 2001/29 and of Article 8(2) of Directive 2006/115, it cannot be considered that that additional service is offered in a place accessible to the public against payment of an entrance fee within the meaning of Article 8(3) of that directive.

Consequently, the communication to the public of TV and radio broadcasts by means of TV and radio sets installed in hotel rooms does not fall within the scope of the exclusive right of broadcasting organisations provided for in Article 8(3) of Directive 2006/115. In the light of all of the foregoing, the answer to the question referred is that Article 8(3) of Directive 2006/115 must be interpreted as meaning that the communication of television and radio broadcasts by means of TV sets installed in hotel rooms does not constitute a communication made in a place accessible to the public against payment of an entrance fee.

(see paras 24-27, operative part)