24.

Under these circumstances, the Landgericht Köln decided to stay its proceedings and to refer the following questions to the Court for a preliminary ruling: ‘(1) Is the question as to whether there is a “communication to the public” within the meaning of Article 3(1) of Directive 2001/29 and/or within the meaning of Article 8(2) of Directive 2006/115 always to be determined in accordance with the same criteria, namely that: — a user acts, in full knowledge of the consequences of its action, to provide access to the protected work to third parties which the latter would not have without that user’s intervention; — the term “public” refers to an indeterminate number of potential recipients of the service and, in addition, must consist of a fairly large number of persons, in which connection the indeterminate nature is established when “persons in general” — and therefore not persons belonging to a private group — are concerned, and “a fairly large number of persons” means that a certain de minimis threshold must be exceeded and that groups of persons concerned which are too small or insignificant therefore do not satisfy the criterion; in this connection not only is it relevant to know how many persons have access to the same work at the same time but it is also relevant to know how many of them have access to it in succession; — the public to which the work is communicated is a new public, that is to say, a public which the author of the work did not contemplate when he authorised its use by communication to the public, unless the subsequent communication uses a specific technical means which differs from that of the original communication; and — it is not irrelevant that the act of exploitation in question serves a profit-making purpose and also that the public is receptive to that communication and is not merely “reached” by chance, although this is not an essential condition for the existence of communication to the public? (2) In cases such as that in the main proceedings, in which the operator of a rehabilitation centre installs television sets on its premises, to which it transmits a broadcast signal and thus makes it possible for television programmes to be viewed and heard, is the question whether there is communication to the public to be assessed according to the concept of “communication to the public” under Article 3(1) of Directive 2001/29 or under Article 8(2) of Directive 2006/115 if the copyright and related rights of a wide range of persons concerned — in particular composers, songwriters and music publishers, but also performing artists, phonogram producers and authors of literary works as well as their publishing houses — are affected by the television programmes which have been made accessible? (3) In cases such as that in the main proceedings, in which the operator of a rehabilitation centre installs television sets on its premises, to which it transmits a broadcast signal and thus makes television programmes accessible to its patients, is there a “communication to the public” pursuant to Article 3(1) of Directive 2001/29 or pursuant to Article 8(2) of Directive 2006/115? (4) If the existence of communication to the public within this meaning is confirmed for cases such as that in the main proceedings, does the Court of Justice uphold its case-law according to which no communication to the public takes place in the event of the radio broadcasting of protected phonograms to patients in a dental practice (see the judgment of 15 March 2012 in SCF, C‑135/10, EU:C:2012:140) or similar establishments?’