Source: EURLEX
Language: en
Format: md

Case C‑135/23

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

v

GL

(Request for a preliminary ruling from the Amtsgericht Potsdam)

Judgment of the Court (First Chamber) of 20 June 2024

(Reference for a preliminary ruling – Intellectual property – Copyright and related rights – Directive 2001/29/EC – Article 3(1) – Communication to the public – Concept – Mere provision of physical facilities – Provision in apartments of television sets equipped with an indoor antenna enabling signals to be picked up and broadcasts to be made – Profit-making nature – Principle of technological neutrality)

1. Approximation of laws – Copyright and related rights – Directive 2001/29 – Harmonisation of certain aspects of copyright and related rights in the information society – Communication to the public – Concept – Criteria for assessment

   (European Parliament and Council Directive 2001/29, Art. 3(1))

   (see paragraphs 17-26)
2. Approximation of laws – Copyright and related rights – Directive 2001/29 – Harmonisation of certain aspects of copyright and related rights in the information society – Communication to the public – Concept – Provision in rented apartments of television sets equipped with an indoor antenna enabling signals to be picked up and broadcasts to be made – Included – Condition – New public – Short-term tenants

   (European Parliament and Council Directive 2001/29, Art. 3(1))

   (see paragraphs 27-46, operative part)

Résumé

Ruling on a request for a preliminary ruling from the Amtsgericht Potsdam (Local Court, Potsdam, Germany), the Court of Justice clarifies the concept of ‘communication to the public’ of a protected work, within the meaning of Article 3(1) of Directive 2001/29/EC, (
[1](#t-ECR_62023CJ0135_RES_EN_01-E0001)
) in the context of the provision, by the operator of an apartment building, of television sets equipped with an indoor antenna enabling signals to be picked up and broadcasts to be made.

Gesellschaft für musikalische Aufführungs- und mechanische Vervielfältigungsrechte eV (GEMA), a collective management organisation that handles music copyright, brought a claim for damages under copyright law against GL, the operator of an apartment building comprising 18 rented apartments, on the ground that GL provides, in those apartments, such television sets.

In order to resolve that dispute, the referring court seeks to ascertain, in essence, whether the concept of ‘communication to the public’, referred to in Article 3(1) of Directive 2001/29 (‘the concept of “communication to the public”’), covers the provision of such television sets.

Findings of the Court

At the outset, the Court recalls that the concept of ‘communication to the public’ includes two cumulative criteria, namely the act of communication of a work and the communication of that work to a public, and requires an individual assessment. According to the case-law of the Court, it is, in particular, the indispensable role of the user in order to give his or her customers access to protected works and the deliberate nature of his or her intervention, in particular if that intervention is of a profit-making nature, which makes it possible to distinguish between, on the one hand, the ‘communication to the public’ and, on the other hand, the ‘mere provision of physical facilities’. (
[2](#t-ECR_62023CJ0135_RES_EN_01-E0002)
)

The Court finds that, although it is for the national court to determine whether the building operator in the main proceedings carries out an act of ‘communication to the public’, it is for the Court to provide it with useful indications in that regard to enable the national court to decide the case before it.

In that regard, the Court notes, in the first place, that the operator of an apartment building, by installing in those apartments television sets and indoor antennae that, without further intervention, pick up signals and enable broadcasts to be made, in particular of music, deliberately makes an intervention in order to give its clientele access to those broadcasts, within rented apartments and during the rental period, irrespective of whether the latter avails itself of that opportunity. In addition, that intervention of the operator must be considered to be an additional service performed with the aim of obtaining some benefit. Thus, the offer of such a service makes it possible to establish that the communication is of a profit-making nature. In that regard, the fact that the television sets are connected to an ‘indoor’ antenna rather than a ‘central’ antenna is irrelevant, since such a distinction between the antennae is not consistent with the principle of technological neutrality.

In the second place, as regards the question whether the protected works are actually communicated to a public, the Court points out that the concept of ‘public’ refers to an indeterminate number of potential recipients and implies, moreover, a fairly large number of people. Thus, that concept involves a certain de minimis threshold, which excludes from that concept a group of persons concerned that is too small, or insignificant. In order to determine that number, account should be taken, in particular, of the number of persons able to access the work at the same time, but also in succession. If the referring court were to find that the apartments in the building at issue in the main proceedings are let on a short-term basis, in particular as tourist accommodation, their tenants should be classified as a ‘public’, since together they constitute an indeterminate number of potential recipients.

In the third place, the Court states that, in order to be categorised as a ‘communication to the public’, a protected work must 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 it authorised the initial communication of its work to the public. In that regard, tenants of apartments in a building that are let on a short-term basis, in particular as tourist accommodation, are capable of constituting such a ‘new’ public, since those persons, although within the catchment area of that broadcast, could not, without the intervention of the operator of that apartment building, involving the installation of television sets equipped with indoor antennae in those apartments, enjoy the broadcast works. By contrast, if the referring court were to find that those apartments are let to tenants who establish their residence there, those tenants cannot be regarded as a ‘new public’.

Therefore, the Court finds that the concept of ‘communication to the public’ must be interpreted as meaning that it covers the deliberate provision, by the operator of a rented apartment building, of television sets equipped with an indoor antenna that, without further intervention, pick up signals and enable broadcasts to be made, provided that the tenants of those apartments can be regarded as a ‘new public’.

---

(
[1](#c-ECR_62023CJ0135_RES_EN_01-E0001)
) Under 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](./../../../legal-content/EN/AUTO/?uri=OJ:L:2001:167:TOC)), 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.

(
[2](#c-ECR_62023CJ0135_RES_EN_01-E0002)
) According to recital 27 of Directive 2001/29, ‘the mere provision of physical facilities for enabling or making a communication does not in itself amount to communication within the meaning of [that] Directive.’

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