Source: EURLEX
Language: en
Format: md

Provisional text

OPINION OF ADVOCATE GENERAL

SZPUNAR

delivered on 4 September 2025 ([1](#Footnote1))

**Case C**‑**127/24**

**Gesellschaft für musikalische Aufführungs- und mechanische Vervielfältigungsrechte eV (GEMA)**

**v**

**VHC 2 Seniorenresidenz und Pflegeheim gGmbH**

(Request for a preliminary ruling from the Bundesgerichtshof (Federal Court of Justice, Germany))

( Reference for a preliminary ruling – Intellectual property – Copyright and related rights – Directive 2001/29/EC – Article 3(1) – Right of ‘communication to the public’ – Concept of communication to the public – New public – Retransmission of a signal by means of a cable network owned by a retirement home )

  
  
  
  

**Introduction**

1.        It is now settled case-law that a communication to the public, within the meaning of EU copyright law, is made by a user who intentionally gives access to protected works – which have been broadcast by radio or by television – to members of the public who, without that user’s intervention, would not have been able to access those broadcasts. ([2](#Footnote2)) That includes, inter alia, operators of hotels, public houses, spa and rehabilitation centres, and short-term rental apartments. ([3](#Footnote3))

2.        What all those establishments have in common is that they host an occasional public that stays there more or less voluntarily for relatively short periods, which permits the inference that that public is unlikely to equip itself for the stay in question with equipment to access, inter alia, television broadcasts. That public therefore depends on the service provided by the operator of the establishment to access those broadcasts.

3.        In the present case, the Court is called upon to answer the question as to whether the same logic can be applied to an establishment in which the recipients concerned are permanently resident.

**Legal framework**

***European Union law***

4.        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 ([4](#Footnote4)) provides:

‘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.’

***German law***

5.        Under German law, the right of communication to the public by radio or television transmission and subsequent cable retransmission is governed by Paragraph 15(2) and (3) of the Gesetz über Urheberrecht und verwandte Schutzrechte – Urheberrechtsgesetz (Law on copyright and related rights) of 9 September 1965, ([5](#Footnote5)) read in conjunction with Paragraphs 20 and 20b of that law.

**Facts in the main proceedings, procedure and the questions referred for a preliminary ruling**

6.        Gesellschaft für musikalische Aufführungs- und mechanische Vervielfältigungsrechte eV (GEMA) is an organisation for the collective management of copyright in the music sector.

7.        VHC 2 Seniorenresidenz und Pflegeheim gGmbH (‘VHC 2 Seniorenresidenz’) is the operator of a residential home for the elderly, providing permanent accommodation for 89 elderly people reliant on care, who receive full care in 88 individual rooms and three double rooms, supplemented by various communal areas, such as dining rooms and day rooms. By means of its own satellite receiving system, VHC 2 Seniorenresidenz receives broadcast programmes, namely television and radio, and retransmits them simultaneously, unaltered and unabridged, by means of its cable network, to connections installed in residents’ rooms and treatment rooms.

8.        Taking the view that that retransmission of broadcast programmes requires a licence, GEMA brought an action against VHC 2 Seniorenresidenz before the Landgericht (Regional Court, Germany) seeking an injunction prohibiting the broadcast of musical works in its repertoire, which action was upheld by that court.

9.        Ruling on the appeal brought by VHC 2 Seniorenresidenz against that judgment, the Oberlandesgericht Zweibrücken (Higher Regional Court, Zweibrücken, Germany) dismissed GEMA’s action on the ground that the retransmission at issue did not constitute a communication to the public. That court held, in essence, that, although there was indeed an act of communication, that communication is not, however, communication to the public because it is restricted to the limited circle of residents of the home, which, while satisfying the criterion of a fairly large number of persons, constitutes a group which is structurally very homogeneous and one which intends to stay permanently in the establishment, with a rather low fluctuation rate. Thus, according to that court, the communication in question is limited to specific persons belonging to a private group.

10.      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, in that context, whether the residents of the retirement home in question constitute a public within the meaning of the Court’s case-law on the concept of ‘communication to the public’ and whether they constitute a ‘new public’ within the meaning of that case-law in the context of the retransmission of radio and television broadcasts by the operator of that home for the benefit of those residents. It also raises the question as to whether such a retransmission is carried out using a new technical means within the meaning of that case-law.

11.      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?’

12.      The request for a preliminary ruling was received by the Court on 15 February 2024. Written observations were submitted by the parties to the main proceedings, the French Government and the European Commission. The same parties were present at the hearing held on 2 April 2025.

**Analysis**

13.      By its request for a preliminary ruling, the referring court seeks to ascertain whether Article 3(1) of Directive 2001/29 must be interpreted as meaning that the operator of a retirement home carries out a communication to the public when it simultaneously transmits, unaltered and unabridged, broadcast programmes, received by a satellite receiving system, via its own cable network to the television and radio connections installed in residents’ rooms. In order to do so, that court asks three questions concerning three elements of the definition of the concept of ‘communication to the public’, developed in the case-law of the Court, namely the concepts of ‘public’, ‘specific technical means’ and ‘new public’. ([6](#Footnote6))

14.      I shall focus my analysis on the second and third questions, since the answer which I propose to give to them will enable the referring court to resolve the dispute in the main proceedings. I shall therefore address the first question only in the alternative.

***The second and third questions referred for a preliminary ruling***

15.      By its second and third questions, the referring court seeks to determine whether the behaviour of the operator of a retirement home at issue in the main proceedings constitutes a communication to the public, within the meaning of Article 3(1) of Directive 2001/29, as interpreted by the Court, either as an act of communication carried out using ‘specific technical means’ or as a communication intended for a ‘new public’.

*The concept of ‘specific technical means’: the second question referred for a preliminary ruling*

16.      I note at the outset that the second question referred for a preliminary ruling, as formulated by the referring court, is of such an abstract and general nature as to give rise to doubts as to its admissibility since the Court does not have jurisdiction to answer hypothetical questions which are not necessary for the resolution of the dispute pending before the court which requested that it give a preliminary ruling. ([7](#Footnote7)) However, it is apparent from the order for reference that, by that question, that court seeks to determine, in essence, whether the fact that the operator of a retirement home transmits to the rooms of that home, by means of a cable system, television and radio programmes received using its satellite antenna constitutes a communication to the public subject to authorisation by the copyright holders under Article 3(1) of Directive 2001/29 on the sole ground that that transmission is effected by a specific technical means, different from that of the original broadcast and without it being necessary to verify whether the ‘new public’ criterion is satisfied.

17.      According to that order, the referring court’s doubts arise from the fact that the Court, while having established the criterion of ‘different technical means’, appears, in some situations, to have departed from it or, in others, not to have taken it into account. According to that court, an operator that transmits by a cable system the television and radio signal received by a satellite antenna carries out a communication (transmission) using a technical means (cable) different from the technical means used for the original broadcast (satellite).

18.      It does not seem to me, however, that that premiss put forward by the referring court is correct.

19.      Both the new public criterion and that of specific technical means have their origin in the case-law and must therefore be understood and applied, for the purposes of interpreting Article 3(1) of Directive 2001/29, in accordance with the case-law which established them. As regards the second criterion, it was introduced by the Court in order to distinguish two types of situation: those where *two transmissions* are made ‘under specific technical conditions, using a different means of transmission for the protected works, and each is intended for a public’ and those where ‘an operator had *made accessible*, by its deliberate intervention, *a broadcast* containing protected works to a new public’. ([8](#Footnote8)) While the first type of situation concerns, in particular, retransmissions over the internet, the situation in which a hotel operator distributes by cable to the hotel’s rooms the television signal received by an antenna, at issue in the case which gave rise to the judgment in *SGAE*, falls within the second type of situation. ([9](#Footnote9))

20.      The situation of the operator of a retirement home at issue in the main proceedings is analogous to that second situation. Therefore, such an operator, which transmits, by means of a cable system to the rooms of that home, the broadcasts received by means of its satellite antenna, does not carry out a transmission of those broadcasts according to a specific technical method different from that used for those broadcasts, but merely gives the residents access to those broadcasts.

21.      From a more general point of view, the concept of ‘specific technical means’, as it emerges from the case-law of the Court, ([10](#Footnote10)) refers to technical means which, because of the different means of transmission of the original broadcast, allow access to that broadcast under substantially different technical conditions, either from the point of view of the catchment area, that of the accessibility or quality of the signal or, finally, as regards the equipment necessary for reception. The traditional means of radio and television broadcasting – terrestrial, satellite and cable – and the internet therefore constitute specific technical means.

22.      As regards, more specifically, the aspects of copyright relating to cable distribution, they are regulated, inter alia, by Directive 93/83/EEC. ([11](#Footnote11)) The Court has already had occasion to hold that that directive governs only the relationship between copyright owners and holders of related rights and ‘cable operators’ or ‘cable distributors’, those concepts designating the operators of traditional cable networks whose principal activity is the distribution by cable of radio and television broadcasts. Thus, a hotel cannot be regarded as a ‘cable operator’ within the meaning of that directive. ([12](#Footnote12))

23.      The same applies, in my view, to the concept of ‘specific technical means’. What characterises a cable operator, within the meaning of Directive 93/83, is the fact that, by its activity, it substantially alters the technical and economic conditions of reception of the signal which it retransmits. Thus, not only does an operator exempt its customers from installing their own antenna, it also enables reception in places where the terrestrial or satellite signal is weak or non-existent and gives access to broadcasts from various broadcasting organisations by creating a ‘package’ of programmes. It is also likely, within the legal and technical limits of its activity, to connect to its network an indeterminate number of users. Such a cable operator therefore carries out an independent retransmission of original broadcasts.

24.      On the other hand, the operator of an establishment such as a hotel or, as in the present case, a retirement home, which retransmits the signal received by its own antenna to the various parts of that establishment, in particular the residential units, merely enables the original broadcast to be received on television sets installed in those places, the number of which is moreover specified, and which are typically found in a single building or set of buildings forming a single establishment.

25.      As regards cable retransmission, the concept of ‘specific technical means’ therefore concerns retransmission by cable network operators, such as the one at issue in the case giving rise to the judgment in *AKM*. ([13](#Footnote13)) That concept does not, however, concern the mere transmission of the signal from an antenna to television sets within a single establishment, although that transmission is also usually carried out by cable.

26.      Moreover, in so far as the criteria of ‘specific technical means’ and ‘new public’ are independent, satisfaction of one of those criteria obviates the need to analyse the situation from the point of view of the other. It is true that, in the judgment in *AKM*, ([14](#Footnote14)) the Court ruled out the application of the ‘specific technical means’ criterion in order to find that there was no communication to the public, on the ground that the criterion of ‘new public’ was not satisfied. However, as the Commission rightly notes, that was an exceptional situation in which, under the applicable national law, the authorisation given by the copyright holders to the national broadcasting organisation equated to an authorisation for the cable retransmission of that organisation’s broadcasts. ([15](#Footnote15)) The judgment in *AKM* ([16](#Footnote16)) therefore entails only a rather obvious rule, according to which, where it is clear that the rightholders have given their authorisation both for the original communication and for secondary communication, the technical means used in the course of that second communication is irrelevant.

27.      The answer to the second question must therefore be that the transmission of the radio and television signals from the antenna to receivers within a retirement home does not constitute a communication carried out by a specific technical means different from that used for the original broadcast.

*The concept of ‘new public’: the third question referred for a preliminary ruling*

28.      By its third question referred for a preliminary ruling, the referring court asks, in essence, whether Article 3(1) of Directive 2001/29 must be interpreted as meaning that the fact that the operator of a retirement home transmits by means of a cable system to the rooms of that home the broadcasts received using its satellite antenna constitutes a communication to the public – subject to the authorisation of the copyright holders under that provision – on the ground that that transmission is intended for a ‘new public’, that is to say, a public which was not taken into account by the copyright holders when they authorised the original broadcast.

29.      The concept of ‘new public’ in the context of the right of communication to the public derives from the judgment in *SGAE*. The case which gave rise to that judgment concerned the distribution of the television signal to hotel rooms, that is to say a secondary use of television broadcasts. The relevance of the ‘new public’ criterion to classify such use as communication to the public is explained in that judgment as follows:

‘40.      It should … be pointed out that a communication made in circumstances such as those in the main proceedings constitutes … a communication made by a broadcasting organisation other than the original one. Thus, such a transmission is made to a *public different from the public at which the original act of communication* of the work is directed, that is, to a *new public*.

41.      … [W]hen 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 programme. … [I]f 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 … [it] 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. … [S]uch public reception falls within the scope of the author’s exclusive authorisation right.

42.      The clientele of a hotel forms such a new public. The transmission of the broadcast work to that clientele using television sets is not just a technical means to ensure or improve reception of the original broadcast in the catchment area. On the contrary, the hotel is the organisation which intervenes, in full knowledge of the consequences of its action, to give access to the protected work to its customers. In the absence of that intervention, its customers, although physically within that area, would not, in principle, be able to enjoy the broadcast work.’ ([17](#Footnote17))

30.      According to the now-established wording, ‘new public’ means the public that was not already taken into account by the copyright holder when they authorised the initial communication of their work to the public. ([18](#Footnote18)) As the Court held in the judgment in *SGAE*, ([19](#Footnote19)) in authorising the broadcasting of their works, authors take into account direct users, that is, the owners of reception equipment who, either personally or within their own private or family circles, receive the programme.

31.      Customers of establishments such as hotels, public houses or rehabilitation centres are not in such a situation, since they receive broadcasts not as owners of reception devices, but as mere users of those devices and not in their private or family circles but in public places. It is therefore only as a result of the intervention of the operator of the establishment in question that its customers can benefit from those broadcasts in such circumstances. The customers therefore form an additional public in relation to the public taken into account by the rightholders when they authorised the initial communication of their works to the public.

32.      The situation of the residents of a retirement home is, in that regard, distinctive.

33.      It is true that the operator of that home intervenes, in full knowledge of the consequences of its action, to give access to the protected works to its customers who, without that intervention, would not be able to enjoy them, at least under the conditions provided by that operator.

34.      However, if that logic were taken to the extreme, the public taken into account by the holders, when they gave their initial authorisation, would be limited only to owners of single-family homes equipped with their own antennas. In all other situations, the reception of television signal is, to a certain extent, conditional on the intervention of third parties, whether it is the owners in the case of rented dwellings, the administrators of co-ownership properties equipped with common antennas or the operators of local cable networks. ([20](#Footnote20))

35.      To recognise in all those situations the existence of a communication to a secondary public would run counter to both the letter and the spirit of Article 3(1) of Directive 2001/29, as interpreted by the Court. Such an interpretation would lead to overcompensation of the copyright holders, who would be remunerated twice – first, by the broadcasting organisations and, then, by those responsible for that secondary communication – for a communication intended in reality for the same public and carried out under the same technical conditions.

36.      It follows, in my view, that, in order to determine whether there is in fact a new public, it is not appropriate to focus the analysis solely on the role of the user who makes access to the original broadcasts possible, but account must be taken of the capacity in which the targeted recipients obtain that access.

37.      From that point of view, the residents of a retirement home must, in my view, be regarded as direct users of the original broadcasts, within the meaning of paragraph 41 of the judgment in *SGAE*. In accordance with what has been established, it is apparent from the order for reference that, in the main proceedings, those residents make that home, in principle, their domicile, with a view to spending the end of their lives there. In that capacity as permanent residents, they must therefore be regarded as the owners of the reception equipment installed there ([21](#Footnote21)) which, in their private sphere, receives the broadcasts.

38.      The special feature of a retirement home is that its residents, because of their age, are not fully autonomous, but depend on the services provided by the operator of that home for many aspects of their daily lives. That is, moreover, the main reason why they choose to settle there. Those services include not only care in the strict sense, but also many everyday services. One of them is the provision of access to a radio and television signal using equipment belonging to the home. In view of the status of those residents as direct users of the original broadcast, that supply must be regarded not as a communication to a secondary public, but as a mere technical means of ensuring reception of that original broadcast in its catchment area, within the meaning of paragraph 42 of the judgment in *SGAE*.

39.      That reasoning is consistent with the reservation, expressed by the Court in paragraph 45 of the judgment in *GEMA*, according to which, in the case of the provision of equipment enabling the reception of television and radio programmes in apartments rented to residential tenants, the latter should not be regarded as a ‘new public’ and such provision does not therefore fall within the exclusive right of communication to the public. On that point, I disagree with GEMA’s argument that that situation is not comparable to the one at issue in the present case on the ground that, according to GEMA, the owner of a rented dwelling merely makes that dwelling available to the tenant, whereas the operator of a retirement home itself provides residents with all the necessary services. In both cases, where the recipients of the service – consisting of providing access to radio and television broadcasts – are considered to be the owners of reception equipment who receive those broadcasts in their private sphere, that service does not constitute a communication to the public. Circumstances pertaining to other services possibly provided by the same service provider are irrelevant here.

40.      It must therefore be held that the residents of a retirement home do not constitute a new public, which was not taken into account by the copyright holders when the latter gave their authorisation for the initial communication to the public of their works in the form of broadcasts. Consequently, the retransmission of those works by the operator of that home to those residents does not fall within the concept of ‘communication to the public’, within the meaning of Article 3(1) of Directive 2001/29, and is therefore not subject to the exclusive right of those rightholders.

41.      That conclusion is not called into question by the argument raised by GEMA that its rates provide for the payment of royalties by, inter alia, the operators of retirement homes, with the result that the communications made by those operators for the benefit of the residents of those homes cannot be regarded as being covered by the authorisation given to broadcasting bodies. The interpretation of Article 3(1) of Directive 2001/29, which is the subject matter of the present case, concerns the substantive scope of the right of communication to the public and cannot be dependent on the practice of collective management of that right; instead, the latter will have to adapt to that interpretation.

42.      Nor does the fact that the activity of the operator of a retirement home is of a profit-making nature have any bearing on the classification of its behaviour from the point of view of copyright law. It is clear that the accommodation fees paid by the residents of a home to that operator cover, inter alia, the provision of the radio and television signal. In such a situation, those fees must, however, be regarded as consideration for the service consisting in enabling those residents to receive original broadcasts and their payment does not transform that service into an independent operation of those broadcasts.

43.      Furthermore, the conclusion that the residents of a retirement home do not constitute a new public – to whom the operator of that home intends to make a communication – must apply, in my view, not only to television sets installed in the residents’ individual rooms expressly referred to in the questions referred for a preliminary ruling, but also to those installed in communal areas, such as dining rooms and day rooms. Even though, owing to the specific nature of a retirement home, ([22](#Footnote22)) some of the residents’ activities, such as eating meals or certain leisure activities, are communal activities, they still fall within their private sphere. To consider that private sphere as being limited to individual rooms seems to me not only unacceptable from an axiological point of view, but simply factually incorrect: given the specific situation of a retirement home, the communal areas are in reality an extension of the private sphere of the residents.

*Answer to the questions*

44.      According to settled case-law, in order to be classified as a ‘communication to the public’ within the meaning of Article 3(1) of Directive 2001/29, a secondary communication must be made by specific technical means or, failing that, be intended for a new public. ([23](#Footnote23)) In a situation such as that at issue in the main proceedings, neither of those two criteria is satisfied. Consequently, the answer to the second and third questions must be that the operator of a retirement home does not make a communication to the public when it simultaneously retransmits via its cable network, unaltered and unabridged, to the television and radio connections installed in the residents’ rooms, broadcast programmes received by means of a satellite reception system.

***In the alternative: the first question referred for a preliminary ruling***

45.      By its first question, the referring court asks, in essence, whether the residents of a retirement home constitute a public for which the communication made by the operator of that home is intended in circumstances such as those at issue in the main proceedings. If the Court were to follow my proposed answer to the second and third questions, the first question would not call for a reply, since the behaviour of the operator in question would have to be considered a technical means enabling the reception of the original broadcast to a section of the public targeted by that broadcast. It is therefore only in the alternative, in the event that the Court does not follow my proposal, that I shall analyse the first question.

46.      The referring court’s doubts relate to the fact that, in its judgment on appeal in the main proceedings, the Oberlandesgericht Zweibrücken (Higher Regional Court, Zweibrücken) considered the communication at issue to be intended not for a public but for a private group. ([24](#Footnote24)) It seems to me, however, that that assessment by the Higher Regional Court is incorrect.

47.      According to the settled case-law of the Court, the concept of ‘public’ refers to an indeterminate number of potential recipients and implies, moreover, a fairly large number of people. Thus, that concept includes a certain *de minimis* threshold, which excludes too small a number of persons concerned, or even an insignificant number. ([25](#Footnote25))

48.      Against that background, it is not disputed in the main proceedings that the residents of the home operated by the respondent on a point of law constitute a fairly large group of people in excess of the *de minimis* threshold. On the other hand, it does not seem clear whether they must be regarded as indeterminate persons or, on the contrary, as a private group, in the light, first, of the relative stability of that group of persons and, secondly, of the links which they may have forged between them during their stay in the home at issue.

49.      In that connection, as regards the indeterminate nature of the members of the public, the Court has held that they are ‘persons in general, that is, not restricted to specific individuals belonging to a private group’. ([26](#Footnote26)) The public is therefore defined in opposition to a private group, as meaning that, in the context of a communication of works protected by copyright, persons who do not form a private group must be classified as a public.

50.      However, what the Court has not expressly stated, but which is inherent in that opposition, is that, in order for a communication not to be regarded as intended for a public and thus fall outside the exclusive right of the authors, the person responsible for that communication must be part of the private group in question. Only where that condition is met can the communication be regarded as being intended for a private group, namely that of the person responsible for the communication (also referred to as the ‘private circle’ or ‘family circle’). ([27](#Footnote27))

51.      On the other hand, where the persons for whom the communication is intended do not form part of the private circle of the person responsible for the communication, they form, from that person’s point of view, a public, although they may belong to a private group among themselves. In that case, the communication is intended for a public.

52.      That situation corresponds exactly to that of a retirement home such as that at issue in the main proceedings. While the residents may form a private group among themselves, that is irrelevant to the subject matter of the present case, since their relationship with the operator of that home – that is to say, the person responsible for the communication at issue – is not a private relationship, but a commercial relationship between a service provider and its customers. From the point of view of the right of communication to the public, those residents are therefore likely to constitute a public for which the communication made by the operator of the residence in question is intended.

53.      It is true that, in the judgment in *SCF*, ([28](#Footnote28)) the Court did not classify patients of a dental practice as a ‘public’. However, that case concerned the interpretation not of Article 3(1) of Directive 2001/29 but of Article 8(2) of Directive 92/100/EEC, ([29](#Footnote29)) which does not establish an exclusive right to authorise or prohibit, but a compensatory right in connection with a communication to the public of phonograms, that is to say, a purely economic right. Having found that those two rights pursue partly different purposes, ([30](#Footnote30)) the Court was able to regard specific criteria as decisive, in particular those of the receptiveness of the recipients of the communication and the quasi-private nature of the group formed by the patients of a dental practice. ([31](#Footnote31)) However, that judgment has no bearing on the interpretation of Article 3(1) of Directive 2001/29. ([32](#Footnote32))

54.      It follows that if a communication in the form of the retransmission of a radio and television signal by the operator of a retirement home, such as that at issue in the main proceedings, were to be regarded as a communication to the public within the meaning of Article 3(1) of Directive 2001/29, the residents of that home may constitute a public for which that communication is intended.

**Conclusion**

55.      In the light of all the foregoing considerations, I propose that the questions referred for a preliminary ruling by the Bundesgerichtshof (Federal Court of Justice, Germany) be answered as follows:

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 operator of a retirement home does not make a communication to the public when it simultaneously retransmits via its cable network, unaltered and unabridged, to the television and radio connections installed in the residents’ rooms, broadcast programmes received by a satellite reception system.

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[1](#Footref1)      Original language: French.

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[2](#Footref2)      See, to that effect, most recently, judgment of 20 June 2024, *GEMA* (C‑135/23, ‘the judgment in *GEMA*’, EU:C:2024:526, in particular paragraphs 30, 33, 38 and 44).

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[3](#Footref3)      See, respectively, judgments of 7 December 2006, *SGAE* (C‑306/05, ‘the judgment in SGAE’, EU:C:2006:764, paragraph 46); of 4 October 2011, *Football Association Premier League and Others* (C‑403/08 and C‑429/08, EU:C:2011:631, paragraph 196); of 27 February 2014, *OSA* (C‑351/12, EU:C:2014:110, paragraph 26); of 31 May 2016, *Reha Training* (C‑117/15, EU:C:2016:379, paragraphs 55 and 56); and the judgment in *GEMA* (paragraphs 44 to 46).

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[4](#Footref4)      OJ 2001 L 167, p. 10.

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[5](#Footref5)      BGBl. 1965 I, p. 1273.

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[6](#Footref6)      On the relevance of those concepts, see, most recently, the judgment in *GEMA* (paragraphs 38 and 43).

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[7](#Footref7)      See, most recently, judgment of 19 June 2025, *Laimz* (C‑509/23, EU:C:2025:466, paragraphs 54 and 55).

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[8](#Footref8)      See judgment of 7 March 2013, *ITV Broadcasting and Others* (C‑607/11, EU:C:2013:147, paragraphs 38 and 39). Emphasis added.

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[9](#Footref9)      See judgment of 7 March 2013, *ITV Broadcasting and Others* (C‑607/11, EU:C:2013:147, paragraph 38).

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[10](#Footref10)      The existence of a specific technical means has been established, inter alia, in the judgments of 7 March 2013, *ITV Broadcasting and Others* (C‑607/11, EU:C:2013:147, paragraph 26); of 16 March 2017, *AKM* (C‑138/16, EU:C:2017:218, paragraph 26), and of 29 November 2017, *VCAST* (C‑265/16, EU:C:2017:913).

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[11](#Footref11)      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 (OJ 1993 L 248, p. 15).

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[12](#Footref12)      Judgment of 11 April 2024, *Citadines* (C‑723/22, EU:C:2024:289, paragraphs 26 and 27 and the case-law cited).

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[13](#Footref13)      Judgment of 16 March 2017 (C‑138/16, EU:C:2017:218).

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[14](#Footref14)      Judgment of 16 March 2017 (C‑138/16, EU:C:2017:218).

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[15](#Footref15)      See judgment of 16 March 2017, *AKM* (C‑138/16, EU:C:2017:218, paragraphs 9 and 28 to 30).

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[16](#Footref16)      Judgment of 16 March 2017 (C‑138/16, EU:C:2017:218).

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[17](#Footref17)      Judgment in *SGAE*, paragraphs 40 to 42. Emphasis added.

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[18](#Footref18)      See, most recently, the judgment in *GEMA* (paragraph 43).

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[19](#Footref19)      See paragraph 41 of that judgment, cited in point 29 of this Opinion.

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[20](#Footref20)      As was the case with the network at issue in the case which gave rise to the judgment of 16 March 2017, *AKM* (C‑138/16, EU:C:2017:218).

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[21](#Footref21)      That is, in my view, irrespective of whether that equipment belongs to them or is made available to them by the home operator.

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[22](#Footref22)      See point 38 of the present Opinion.

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[23](#Footref23)      See, most recently, the judgment in *GEMA* (paragraph 43). In the case of primary communications, those criteria are not relevant since, first, the public for such a communication is the first public targeted and therefore, by definition, a ‘new’ public and, secondly, the technical means used have no bearing.

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[24](#Footref24)      See point 9 of the present Opinion.

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[25](#Footref25)      See, most recently, the judgment in *GEMA* (paragraphs 38 and 39).

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[26](#Footref26)      Judgment of 15 March 2012, *SCF* (C‑135/10, EU:C:2012:140, paragraph 85).

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[27](#Footref27)      A document of the World Intellectual Property Organisation puts it as follows: ‘… as regards the adjective “public,” it is the opposite of the adjective “private” and, thus, what may not be characterized as “private” is supposed to be regarded “public”. If “public” is used as a noun, it may similarly be regarded to be the contrary of the “private circle”; that is, those people who are beyond the private circle of the user. … [T]he dominant opinion seems to be that all uses should be regarded “public” and all acts directed “to the public” which go beyond the circle of a family and its close social acquaintances’ (Ficsor, M., Guide to the Copyright and Related Rights Treaties Administered by WIPO, WIPO, Geneva, 2003, p. 70 and 71).

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[28](#Footref28)      Judgment of 15 March 2012, (C‑135/10, EU:C:2012:140).

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[29](#Footref29)      Council Directive of 19 November 1992 on rental right and lending right and on certain rights related to copyright in the field of intellectual property (OJ 1992 L 346, p. 61).

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[30](#Footref30)      Judgment of 15 March 2012, *SCF* (C‑135/10, EU:C:2012:140, paragraph 74).

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[31](#Footref31)      Judgment of 15 March 2012, *SCF* (C‑135/10, EU:C:2012:140, paragraphs 91, 95, 96 and 98).

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[32](#Footref32)      See, to that effect, judgment of 27 February 2014, *OSA* (C‑351/12, EU:C:2014:110, paragraph 35).

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