Source: EURLEX
Language: en
Format: md

OPINION OF ADVOCATE GENERAL

SZPUNAR

delivered on 22 February 2024 (
[1](#t-ECR_62023CC0135_EN_01-E0001)
)

Case C‑135/23

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

v

GL

(Request for a preliminary ruling from the Amtsgericht Potsdam (Local Court, Potsdam, 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 ‘act of communication’ – Provision in apartments of televisions with an indoor antenna able to receive broadcasts)

Introduction

| 1. | In EU copyright law, the right of communication to the public has undoubtedly received the lion’s share of attention in the case-law of the Court of Justice. One of the most fundamental questions of law related to this legal concept is the distinction between a communication to the public – an act subject to the exclusive rights of copyright holders – and the mere provision of physical facilities for enabling or making a communication, which is not subject to it. |

| 2. | The criteria to be taken into account when making that distinction have been outlined in recent judgments of the Court. ( [2](#t-ECR_62023CC0135_EN_01-E0002) ) However, the present case shows that there are still grey areas or borderline situations in which it is not obvious into which category the act in question falls. |

| 3. | The Court is therefore called upon to expand on its existing case-law in the matter, while endeavouring to maintain consistency and ensure an appropriate balance between the different interests at stake. |

Legal context

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 ( [3](#t-ECR_62023CC0135_EN_01-E0003) ) 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. | The right of communication to the public is established, under German law, in Paragraph 15 of the Gesetz über Urheberrecht und verwandte Schutzrechte – Urheberrechtsgesetz (Law on copyright and related rights) of 9 September 1965, ( [4](#t-ECR_62023CC0135_EN_01-E0004) ) in the version applicable to the dispute in the main proceedings (‘the UrhG’), which provides, in particular:  ‘…  (2) The author has the exclusive right to communicate his or her work to the public in non-material form (right of communication to the public). The right of communication to the public shall include, in particular:   | 1. | the right of recitation, performance and presentation (Paragraph 19), |  | 2. | the right of making work available to the public (Paragraph 19a), |  | 3. | the right of broadcasting (Paragraph 20), |  | 4. | the right of communication by video or audio recordings (Paragraph 21), |  | 5. | the right of communication of broadcasts and of works made available to the public (Paragraph 22). |   (3) The communication of a work is deemed public if it is intended for a plurality of members of the public. Anyone who is not connected by a personal relationship with the person exploiting the work or with the other persons to whom the work is made perceivable or made available in non-material form is deemed to be a member of the public.’ |

| 6. | According to the judgment of the Bundesgerichtshof (Federal Court of Justice, Germany) in Königshof, those provisions must be interpreted as meaning that the fact that a hotel manager installs television sets with indoor antennas in hotel rooms does not constitute a communication to the public. ( [5](#t-ECR_62023CC0135_EN_01-E0005) ) In taking that approach, that court did not consider it necessary to refer a question to the Court of Justice for a preliminary ruling on the interpretation of Directive 2001/29. |

Facts, procedure and question referred for a preliminary ruling

| 7. | The Gesellschaft für musikalische Aufführungs- und mechanische Vervielfältigungsrechte eV (‘GEMA’), a collective management organisation which handles music copyright, has brought an action before the Amtsgericht Potsdam (Local Court, Potsdam, Germany) for copyright damages against GL, the operator of an apartment building, on the ground that in those apartments, GL provides television sets with indoor antennas able to receive broadcasts, contrary to Paragraph 15 of the UrhG. |

| 8. | The referring court has doubts as to whether such provision, without a ‘central reception’, constitutes a communication to the public within the meaning of Article 3(1) of Directive 2001/29. It therefore decided to stay the proceedings and refer the following question to the Court of Justice for a preliminary ruling:  ‘Is there a communication to the public within the meaning of Article 3 of Directive [2001/29] when the operator of an apartment building provides televisions in that apartment building which each receive broadcasts via an indoor antenna without a central reception for transmitting the signals?’ |

| 9. | The request for a preliminary ruling was registered at the Court of Justice on 7 March 2023. Written observations have been submitted by GEMA, the French and Austrian Governments and the European Commission. The Court decided to give judgment without holding a hearing. |

Analysis

| 10. | By its question 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 installation by the operator of a rental apartment building, in those apartments, of television sets with indoor antennas able to receive television broadcasts falls within the exclusive right of authors to authorise or prohibit the communication to the public of their works, enshrined in that article. |

| 11. | Valuable insight into the question can be found in the Court’s extensive case-law on the right of communication to the public. A brief summary of that case-law therefore seems appropriate. |

The relevant case-law of the Court

| 12. | According to settled case-law of the Court, the communication to the public of works protected by copyright comprises two elements, namely the act of communication and the public to which that communication is addressed. ( [6](#t-ECR_62023CC0135_EN_01-E0006) ) |

| 13. | The act of communication generally takes one of two forms. The first consists of a transmission of the protected work, or the signal carrying that work, by the author of the communication to the public. Members of the public merely decide whether or not to receive the transmission. This is particularly the case for ‘linear’ media services such as television. The second form of communication is confined to making the work available to the public, members of the public being free to initiate the transmission at a time of their choosing. This is notably the case for acts of communication over the internet. |

| 14. | An important distinction must be drawn between acts of communication and the mere provision of physical facilities for enabling or receiving a communication. Indeed, recital 27 of Directive 2001/29 states that Article 3 of the directive must be interpreted as meaning that such a provision does not in itself amount to communication. ( [7](#t-ECR_62023CC0135_EN_01-E0007) ) The recital reflects the agreed statement concerning Article 8 of the World Intellectual Property Organization (WIPO) Copyright Treaty adopted in Geneva on 20 December 1996 and approved on behalf of the European Community by Decision 2000/278/EC. ( [8](#t-ECR_62023CC0135_EN_01-E0008) ) That recital is also supported by recital 23 of the directive, according to which the right of communication to the public ‘should be understood in a broad sense covering all communication to the public not present at the place where the communication originates’, but ‘should not cover any other acts’. |

| 15. | Thus, the Court has ruled, inter alia, that the hiring out of motor vehicles equipped with radio receivers does not constitute a communication to the public within the meaning of Article 3(1) of Directive 2001/29. ( [9](#t-ECR_62023CC0135_EN_01-E0009) ) |

| 16. | In addition, when there is doubt as to the person who has made a communication, the essential criterion is the indispensable role played by that person and the deliberate nature of his intervention. That person makes an act of communication when he intervenes, in full knowledge of the consequences of his action, to give his customers access to a protected work, and does so in particular where, without that intervention, his customers would not be able to enjoy the broadcast work or would find it difficult to do so. ( [10](#t-ECR_62023CC0135_EN_01-E0010) ) |

| 17. | As for the public at which the communication is directed, this must include an indeterminate, but quite large, number of potential recipients. In order to determine that number, account must be taken, in particular, of the number of persons who may have access to the same work at the same time, but also of how many of them may access it in succession. ( [11](#t-ECR_62023CC0135_EN_01-E0011) ) |

| 18. | In the case of a communication to a secondary public, this must be a ‘new public’ – that is to say, 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. ( [12](#t-ECR_62023CC0135_EN_01-E0012) ) |

| 19. | Lastly, concerning a situation similar to that of the present case, namely the installation of television sets connected to a central antenna in hotel rooms, the Court has held that ‘the distribution of a signal by means of television sets by a hotel to customers staying in its rooms, whatever technique is used to transmit the signal, constitutes communication to the public within the meaning of Article 3(1) of [Directive 2001/29]’. ( [13](#t-ECR_62023CC0135_EN_01-E0013) ) |

Simple application in the present case?

| 20. | On the face of it, the answer to the question referred for a preliminary ruling in the present case could lie in the simple application of the Court’s case-law summarised in the preceding paragraphs. |

| 21. | In effect, the main legal question that arises in the present case is whether the installation in rental apartments of television sets with indoor antennas constitutes an act of secondary communication of television broadcasts to the public, or the mere provision of physical facilities allowing the reception of the initial communication of those broadcasts, such communication being made by the broadcasting organisations. |

| 22. | When distinguishing between those two categories of acts, the Court considers the decisive factor to be whether there is a deliberate intervention by the person concerned in the actual content of the communication, such intervention taking different forms. ( [14](#t-ECR_62023CC0135_EN_01-E0014) ) It has also pointed out that if the mere fact that the use of equipment is necessary in order for the public to be able to enjoy the work automatically resulted in the provision of such equipment being classified as an act of communication, any provision of physical facilities for enabling or making a communication would constitute an act of communication to the public, contrary to the clear wording of recital 27 of Directive 2001/29. ( [15](#t-ECR_62023CC0135_EN_01-E0015) ) |

| 23. | Thus, the Court did not classify as an act of communication either the hiring out of motor vehicles equipped with radio receivers, ( [16](#t-ECR_62023CC0135_EN_01-E0016) ) or the operation, in itself, of an online file‑hosting and file-sharing platform, ( [17](#t-ECR_62023CC0135_EN_01-E0017) ) or lastly, the fact of having, on board a means of public transport, sound equipment and software enabling the broadcasting of background music. ( [18](#t-ECR_62023CC0135_EN_01-E0018) ) Those acts have been likened to the mere provision of physical facilities for making a communication. Moreover, in the judgment in SGAE, which concerned television sets installed in hotel rooms, the Court already clearly distinguished the installation of such sets as such from the distribution of the signal by means of those sets. ( [19](#t-ECR_62023CC0135_EN_01-E0019) ) |

| 24. | According to the Court, in the absence of an act of communication, there is no need to examine whether a new public exists. ( [20](#t-ECR_62023CC0135_EN_01-E0020) ) |

| 25. | It could thus be maintained, in line with the abovementioned case-law, that the installation by the operator of a rental apartment building, in those apartments, of television sets with indoor antennas able to receive television broadcasts without any additional intervention by that operator amounts to a mere provision of physical facilities and therefore does not constitute an act of communication or, consequently, a communication to the public within the meaning of Article 3(1) of Directive 2001/29. |

| 26. | I would like to emphasise that such an approach would, in my view, be perfectly defensible. First, it would be consistent with the formal logic of the relevant decisions of the Court. The situation in the present case displays a number of similarities with that of rental vehicles equipped with radio receivers, at issue in the case giving rise to the judgment in Stim and SAMI. In both cases, the user rents a space – one intended as accommodation, the other as a means of transport – with physical facilities able to receive, without any additional intervention, terrestrial television and radio broadcasts, respectively. A similar classification of those two situations from the point of view of the right of communication to the public, as governed by Article 3 of Directive 2001/29, therefore seems natural. |

| 27. | Secondly, it should be observed that the right of communication to the public is highly dependent on the technology used to carry out the acts covered by it, consisting of the communication of protected works to persons not present at the place where the communication originates. ( [21](#t-ECR_62023CC0135_EN_01-E0021) ) It is not surprising therefore that the relevant legal classifications are based on the criterion of the technology used, rather than other considerations such as the perspective of the end user of the work. ( [22](#t-ECR_62023CC0135_EN_01-E0022) ) Such is the case here, where the approach is based on the absence of additional intervention consisting of a retransmission of the television signal to the rental apartments. |

| 28. | It also seems to have been the approach taken by the Bundesgerichtshof (Federal Court of Justice, Germany) in its judgment in Königshof, cited in point 6 of this Opinion. It is also the one supported by the Austrian Government and the Commission in their observations. |

| 29. | However, I must admit that that approach does not seem wholly convincing from the point of view of the end result achieved. Indeed, in situations where the existence of a public can be envisaged, particularly in the case of a short-term apartment rental, ( [23](#t-ECR_62023CC0135_EN_01-E0023) ) there would be a clear difference in treatment between rental apartments equipped with television sets with indoor antennas and hotel rooms equipped with television sets connected to a central antenna, a hypothesis analysed by the Court in the judgment in SGAE. Moreover, the approach taken in the present case can be easily transposed, if required, to the situation of hotel rooms equipped with television sets with indoor antennas. Still, in my view, the basis of this difference in treatment – namely the absence, in one of the two cases, of an act of communication by the user concerned in the form of a transmission or retransmission, in the strict sense of the term, of the protected content – is difficult to reconcile with the material logic that underpins the interpretation given by the Court in the judgment in SGAE. Furthermore, the technological difference between a central antenna and indoor antennas does not seem substantial enough to justify a difference in treatment from a copyright point of view. |

| 30. | I therefore propose to analyse the present case in the light of that judgment, taking a consistent approach without calling into question the Court’s case-law on the distinction between a communication to the public and the provision of physical facilities enabling such communication. |

Analysis in the light of the judgment in SGAE

| 31. | In the judgment in SGAE, the Court held that ‘the distribution of a signal by means of television sets by a hotel to customers staying in its rooms, whatever technique is used to transmit the signal, constitutes communication to the public within the meaning of Article 3(1) of [Directive 2001/29]’. ( [24](#t-ECR_62023CC0135_EN_01-E0024) ) |

| 32. | It is true that the Court took care in that judgment to clarify that the mere installation of television sets in hotel rooms does not, as such, constitute communication to the public. ( [25](#t-ECR_62023CC0135_EN_01-E0025) ) Nevertheless, it added that such installation may make public access to broadcast works possible. Therefore, if, by means of television sets installed in the rooms, the hotel distributes the television signal to its customers, then communication to the public takes place. ( [26](#t-ECR_62023CC0135_EN_01-E0026) ) |

| 33. | It is also true that, in the case giving rise to the judgment in SGAE, the television signal was initially received by the hotel and then distributed by cable in the hotel rooms, ( [27](#t-ECR_62023CC0135_EN_01-E0027) ) which amounted to retransmission in the strict sense. For the Court, however, the retransmission does not seem to have been the decisive factor when establishing the existence of a communication to the public. |

| 34. | In order to arrive at the conclusion reached in the judgment in SGAE, the Court held that hotel guests constitute a new public, different from the public taken into account by the copyright holders when they authorised the initial act of communication of the works, in this case the television broadcast. According to the Court, that public consists solely of owners of television sets who, within their own private or family circles, receive the broadcasts. Conversely, persons who, even if they are within the catchment area of the broadcast, could not, without the intervention of a third party, receive that broadcast, are not part of that initial public. Therefore, as soon as they are given access to the broadcast in question, such persons must be considered as forming a new public, such that the act by which they receive such access constitutes a communication to the public which is different from the initial communication. In that particular case, it was the hotel that, by installing television sets in hotel rooms so that guests could watch broadcasts, intervened, in full knowledge of the consequences of its action, to give access to the protected works to its customers. ( [28](#t-ECR_62023CC0135_EN_01-E0028) ) |

| 35. | In other words, hotel guests – who are, by definition, away from their place of residence – generally would be unable to receive television broadcasts at the hotel unless they brought their own television sets with an antenna, which would be deeply problematic. Thus, by installing in its hotel rooms television sets connected to an antenna, the hotel in question performs the indispensable act that gives its guests access to that broadcast. However, to the extent that hotel guests form a public, ( [29](#t-ECR_62023CC0135_EN_01-E0029) ) that public must be classified as new and the act in question as a communication to the public. This is the core of the Court’s reasoning in the judgment in SGAE. |

| 36. | By transposing that reasoning to the situation at issue in the present case, it is easy to arrive at the same result. In the first place, the tenants of short-term rental apartments form a public in the same way as hotel guests. In the second place, they are also away from their place of residence, such that they cannot receive television broadcasts without the intervention of a third party. In the third place, such intervention – by installing television sets in the apartments enabling those programmes to be received – must be regarded as giving access to protected works to a new public and classified as a communication to the public. |

| 37. | Admittedly, in a situation such as the one at issue in the main proceedings, the intervention of the operator of an apartment building does not take the form of transmission or retransmission in the strict sense. It could therefore be concluded, as I observed above, ( [30](#t-ECR_62023CC0135_EN_01-E0030) ) that there was no act of communication. The fact remains that there is always a deliberate intervention by the user concerned in order to give access to protected works to a new public. ( [31](#t-ECR_62023CC0135_EN_01-E0031) ) |

| 38. | In a way, we are faced with a dilemma between the coherence of the reasoning whereby no act of communication exists in the absence of transmission of protected works, and the coherence of the result, which requires any intervention by a user who, in full knowledge of the facts, gives access to such works to a new public – who, without that intervention, would be unable to enjoy them – to be classified as a communication to the public. |

| 39. | Evidently, reasoning is essential in the interpretation and application of the law. Coherent and persuasive reasoning provides a basis for the interpretation of the provisions and the outcome of the proceedings, both from the point of view of the parties concerned and the wider public. ( [32](#t-ECR_62023CC0135_EN_01-E0032) ) Yet overly formalistic reasoning could lead to an outcome that, although coherent according to the logic adopted, is unfair or just substantively incorrect. In that situation, it is preferable, in my view, to favour not the outcome of a formalistic application of a line of reasoning that has already been adopted previously, but the one that best reflects the actual basis and objectives of the rule interpreted, whether derived from legislation or case-law. |

| 40. | Admittedly, in the situation at issue in the main proceedings, the operator of an apartment building does not transmit the television signal to those apartments, because each apartment is equipped with ‘stand-alone’ facilities able to receive that signal. Yet the operator’s action is not confined to providing tenants with a television set and an indoor antenna, which they may use as they see fit. By equipping the apartments with television sets with indoor antennas that are tuned to receive the signal from the terrestrial television broadcast available in the catchment area where its building is located, the operator allows tenants to receive specific television broadcasts inside the rented apartments during the rental period. |

| 41. | Viewed from that angle, the situation at issue in the main proceedings is very similar to the one at issue in the case giving rise to the judgment in SGAE. In the light of the underlying rationale for the approach taken by the Court in that judgment, it does not seem to me that, in the present case, technical differences such as the number of antennas used (a central antenna or several indoor antennas) or the length of the cable between the antenna and the television set ( [33](#t-ECR_62023CC0135_EN_01-E0033) ) can justify a radically different approach. |

| 42. | To my mind, therefore, it may properly be considered that, by installing television sets with indoor antennas in rental apartments, the operator of an apartment building performs, in full knowledge of the consequences of his or her action, an ‘act of communication’ consisting of giving tenants access to protected works contained in television broadcasts that may be received in those apartments by means of those television sets, in a manner substantially identical to the situation of hotel rooms equipped with television sets connected to a central antenna. |

Relationship with existing case-law

| 43. | That approach is perfectly in line with the Court’s case-law on the right of communication to the public. In the first place, the Court has adopted a broad interpretation of the concept of ‘communication to the public’, sometimes including in that concept acts that, strictly speaking, do not consist of the transmission of protected works. |

| 44. | Thus, as GEMA rightly observes, in the judgment in Phonographic Performance (Ireland), ( [34](#t-ECR_62023CC0135_EN_01-E0034) ) the Court classified as a communication to the public the provision to customers, by a hotel, of sound recordings, including in physical form, and the apparatus on which they could be played, despite the fact that that act did not involve any transmission and was more akin to the rental of phonograms and suitable technical equipment. To arrive at that conclusion, the Court relied on the fact that the user in question provided its customers with the two elements necessary for them to enjoy the protected works, ( [35](#t-ECR_62023CC0135_EN_01-E0035) ) in much the same way as the installation of a television set with an indoor antenna for receiving and watching television broadcasts. |

| 45. | Furthermore, in Airfield and Canal Digitaal, ( [36](#t-ECR_62023CC0135_EN_01-E0036) ) the Court held that, although the satellite transmission of television programmes must be regarded as constituting a single and indivisible communication to the public attributable to the broadcasting organisation under whose control and responsibility the programme-carrying signals are introduced into the chain of communication leading to the satellite, ( [37](#t-ECR_62023CC0135_EN_01-E0037) ) a satellite package provider may render such programmes accessible to a new public, thus carrying out a separate act under the right of communication to the public. ( [38](#t-ECR_62023CC0135_EN_01-E0038) ) An act of communication to the public may therefore exist without retransmission of protected works separate from the initial transmission. That approach was recently confirmed in the judgment in AKM (Provision of satellite packages in Austria). ( [39](#t-ECR_62023CC0135_EN_01-E0039) ) |

| 46. | Lastly, in a number of cases, the Court has found that a communication to the public exists in situations where the user concerned made the protected works directly available to the public present on site. ( [40](#t-ECR_62023CC0135_EN_01-E0040) ) Thus, in order to ensure a high level of protection for copyright holders, as stated in recital 9 of Directive 2001/29, the Court interprets the concept of ‘communication to the public’ in a way that goes beyond the strict framework of ‘all communication to the public not present at the place where the communication originates’, encompassing in that concept any act by which a user deliberately intervenes to give a new public access to a protected work. ( [41](#t-ECR_62023CC0135_EN_01-E0041) ) |

| 47. | In the second place, the approach I propose taking does not call into question or contradict the Court’s case-law on the distinction between a communication to the public and the mere provision of physical facilities enabling such communication. |

| 48. | Specifically, that approach is not at odds with the one taken by the Court in the judgment in Stim and SAMI. In that judgment, the Court held that the hiring out of motor vehicles equipped with radio receivers does not constitute a communication to the public. It adopted that approach on the ground that the vehicle rental companies were not carrying out an act of communication, but merely providing physical facilities enabling a communication. ( [42](#t-ECR_62023CC0135_EN_01-E0042) ) |

| 49. | As I have already indicated, ( [43](#t-ECR_62023CC0135_EN_01-E0043) ) the situation in the case giving rise to the judgment in Stim and SAMI and the one at issue in the main proceedings may, on the face of it, appear similar, thereby providing justification for their identical legal classification. However, I believe that the two situations differ on the basis of an element that is essential for an act to be classified as a communication to the public, namely a deliberate and indispensable intervention by the user concerned, which exists in the present case and which is absent in the one that gave rise to the judgment in Stim and SAMI. |

| 50. | As I have found, ( [44](#t-ECR_62023CC0135_EN_01-E0044) ) by installing in the apartments, of its own volition and completely independently of the construction of those apartments, television sets with indoor antennas, the operator of the building deliberately makes an intervention in order to give its customers access to television broadcasts, an intervention that can be considered an act of communication within the meaning of the Court’s case-law on the right of communication to the public. |

| 51. | By contrast, an undertaking hiring out motor vehicles makes no such intervention. For years, ( [45](#t-ECR_62023CC0135_EN_01-E0045) ) radio receivers have been routinely installed as standard in motor vehicles and integrated into the control systems of those vehicles, such that undertakings hiring out such vehicles have no influence over their presence on board. Those undertakings do not perform any additional action to give their customers access to radio broadcasts and do not play an indispensable role as regards such access. Therefore, their action is to be regarded as the mere provision of physical facilities, such facilities already being present in the motor vehicles from the time of their production. The copyright holders, having authorised the broadcasting of the works, are presumed to have also taken into account the public who enjoy those works by means of radio receivers installed on board motor vehicles, including rental vehicles. ( [46](#t-ECR_62023CC0135_EN_01-E0046) ) |

| 52. | Admittedly, in my Opinion in Stim and SAMI, ( [47](#t-ECR_62023CC0135_EN_01-E0047) ) I did not consider that a decisive factor, because given the absence of any intervention by undertakings hiring out motor vehicles in the communication of works by radio, the only question that arose was who provided the physical facilities, a question that is irrelevant in copyright law. However, that aspect is significant in the present case, since it highlights the essential difference that exists between the two situations at issue. Furthermore, in Stim and SAMI, the Court did not specifically address that question, holding in general that receiving radio broadcasts by means of radio receivers forming an integral part of motor vehicles took place ‘without any additional intervention by the leasing company’. ( [48](#t-ECR_62023CC0135_EN_01-E0048) ) |

| 53. | Since they have no influence over the installation of radio receivers on board motor vehicles, the vehicle rental companies are not acting for profit, unlike the operator of a rental apartment building who installs television sets in those apartments. ( [49](#t-ECR_62023CC0135_EN_01-E0049) ) Nevertheless, although the profit-making nature of the intervention of the user concerned is not in itself crucial for an act of communication to exist, it may be indicative of the deliberate nature of that intervention. |

| 54. | The approach I propose taking in the present case does not conflict with the Court’s findings that the installation of sound equipment in means of public transport does not constitute an act of communication within the meaning of copyright law. ( [50](#t-ECR_62023CC0135_EN_01-E0050) ) Indeed, in a situation such as those in the cases giving rise to the judgment in Blue Air Aviation, the carrier does not make the sound system available to passengers, but retains control of its use and any transmission of protected works by means of that system, a transmission that, if it takes place, will only then be classified as a communication to the public. ( [51](#t-ECR_62023CC0135_EN_01-E0051) ) Conversely, in the case at issue in the main proceedings, the equipment which enables the reception of a transmission of protected works, namely the television set with an antenna, is made available to members of the public who then decide of their own volition whether to receive that transmission. It is therefore that provision that constitutes, in itself, the act of communication. |

| 55. | Lastly, in the third place, the approach I propose taking is in line with the Court’s case-law in that it highlights the technological neutrality that must inform the interpretation of EU copyright law. That neutrality has already been invoked in the judgment in SGAE, where the Court held that the distribution of the television signal by means of television sets installed in hotel rooms constitutes communication to the public ‘whatever technique is used to transmit the signal’. ( [52](#t-ECR_62023CC0135_EN_01-E0052) ) The Court has since referred to the principle of technological neutrality on several occasions. ( [53](#t-ECR_62023CC0135_EN_01-E0053) ) |

| 56. | However, if the decisive factor in the case at issue in the main proceedings is the deliberate intervention of the user in order to give its customers access to television broadcasts, according to the principle of technological neutrality, it should be irrelevant whether they are given that access by means of a central antenna or several indoor antennas. ( [54](#t-ECR_62023CC0135_EN_01-E0054) ) |

| 57. | Thus, the fact that the operator of an apartment building gives tenants access to television broadcasts by means of television sets with indoor antennas installed in those apartments must be considered an act of communication of the protected works contained in those broadcasts. However, it is still necessary to ascertain whether and, if so, under what conditions, that communication is directed at a new public, as required by the Court’s case-law in the matter. |

The existence of a new public

| 58. | In the judgment in SGAE, the Court concluded that there was a public composed of a succession of hotel customers considered as a whole. ( [55](#t-ECR_62023CC0135_EN_01-E0055) ) Those customers are deemed to be unable to enjoy the works broadcast without the intervention of the hotel giving them access to those works. They therefore form a new public, ( [56](#t-ECR_62023CC0135_EN_01-E0056) ) which justifies the need for additional authorisation from the copyright holders for the communication to the public thus made. ( [57](#t-ECR_62023CC0135_EN_01-E0057) ) |

| 59. | The same reasoning can be followed regarding the operator of an apartment building who gives access to television broadcasts to the tenants of those apartments, since those tenants occupy the apartments for relatively short periods and quickly succeed each other, like hotel guests. Such tenants can thus be regarded as persons who, although within the catchment area of the television broadcast, would be unable to receive that broadcast without the intervention of the operator of the apartment building who gives them access to it by installing television with indoor antennas in those apartments. In practice, the establishments concerned would be, inter alia, aparthotels or holiday lets. |

| 60. | By contrast, tenants who establish their principal or even secondary residence ( [58](#t-ECR_62023CC0135_EN_01-E0058) ) in the rented apartments must be considered the ‘owners of reception equipment’ within the meaning of paragraph 41 of the judgment in SGAE, and therefore as members of the public who were taken into account by the copyright holders when they authorised the initial communication (in this case, the terrestrial television broadcast). Such persons enjoy the protected works within their own private or family circles, and it is irrelevant whether the receiver was provided to them by the owner or operator of the apartment as part of the rental. Such provision must be classified as the mere provision of physical facilities and does not give rise to additional authorisation. |

| 61. | Therefore, to ascertain whether a new public exists, the court hearing the case will have to make findings of fact concerning the nature of the rental in question. In the present case, the request for a preliminary ruling does not contain any details in that regard. |

Answer to the question referred

| 62. | To summarise, although I accept that, in the case at issue in the main proceedings, the conclusion that there is no communication to the public owing to the absence of transmission, in the strict sense, of protected works would be justifiable on the basis of a purely technical approach, such a conclusion does not seem satisfactory in the light of the substantive considerations that underpin the relevant case-law of the Court. In my view, the logic of that case-law requires the act at issue to be regarded as a deliberate intervention by the user concerned with the aim of giving access to protected works to persons who would be unable to enjoy them without that intervention, and thus as an act of communication. That act constitutes a communication to the public as soon as the persons in question form a new public. |

| 63. | I therefore propose that Article 3(1) of Directive 2001/29 be interpreted as meaning that, unless tenants establish their principal or secondary residence there, the installation by the operator of a rental apartment building, in those apartments, of television sets with indoor antennas able to receive the television broadcasts falls within the exclusive right of authors to authorise or prohibit the communication to the public of their works, enshrined in that provision. |

Conclusion

| 64. | In the light of all the foregoing considerations, I propose that the Court answer the question referred for a preliminary ruling by the Amtsgericht Potsdam (Local Court, Potsdam, Germany) 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 unless tenants establish their principal or secondary residence there, the installation by the operator of a rental apartment building, in those apartments, of television sets with indoor antennas able to receive the television broadcasts falls within the exclusive right of authors to authorise or prohibit the communication to the public of their works, enshrined in that provision. |

---

(
[1](#c-ECR_62023CC0135_EN_01-E0001)
) Original language: French.

(
[2](#c-ECR_62023CC0135_EN_01-E0002)
) See, inter alia, judgments of 2 April 2020, Stim and SAMI (C‑753/18, ‘the judgment in Stim and SAMI’, [EU:C:2020:268](./../../../legal-content/EN/TXT/PDF/?uri=ecli:ECLI%3AEU%3AC%3A2020%3A268)); of 22 June 2021, YouTube and Cyando ([C‑682/18 and C‑683/18](./../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AC%3A2021%3A503&locale=en), [EU:C:2021:503](./../../../legal-content/EN/TXT/PDF/?uri=ecli:ECLI%3AEU%3AC%3A2021%3A503)); and of 20 April 2023, Blue Air Aviation (C‑775/21 and C‑826/21, ‘the judgment in Blue Air Aviation’, [EU:C:2023:307](./../../../legal-content/EN/TXT/PDF/?uri=ecli:ECLI%3AEU%3AC%3A2023%3A307)).

(
[3](#c-ECR_62023CC0135_EN_01-E0003)
) [OJ 2001 L 167, p. 10](./../../../legal-content/EN/AUTO/?uri=OJ:L:2001:167:TOC).

(
[4](#c-ECR_62023CC0135_EN_01-E0004)
) BGBl. 1965 I, p. 1273.

(
[5](#c-ECR_62023CC0135_EN_01-E0005)
) Judgment of 17 December 2015 (I ZR 21/14) (BGH GRUR 2016, p. 697).

(
[6](#c-ECR_62023CC0135_EN_01-E0006)
) See, most recently, judgment in Blue Air Aviation (paragraph 47).

(
[7](#c-ECR_62023CC0135_EN_01-E0007)
) See, to that effect, inter alia, judgment in Blue Air Aviation (paragraphs 66 and 67).

(
[8](#c-ECR_62023CC0135_EN_01-E0008)
) Council Decision of 16 March 2000 on the approval, on behalf of the European Community, of the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty ([OJ 2000 L 89, p. 6](./../../../legal-content/EN/AUTO/?uri=OJ:L:2000:089:TOC)).

(
[9](#c-ECR_62023CC0135_EN_01-E0009)
) Judgment in Stim and SAMI (operative part).

(
[10](#c-ECR_62023CC0135_EN_01-E0010)
) See, inter alia, judgment in Stim and SAMI (paragraph 32).

(
[11](#c-ECR_62023CC0135_EN_01-E0011)
) See, most recently, judgment in Blue Air Aviation (paragraphs 52 and 54).

(
[12](#c-ECR_62023CC0135_EN_01-E0012)
) See, recently, judgment of 22 June 2021, YouTube and Cyando ([C‑682/18 and C‑683/18](./../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AC%3A2021%3A503&locale=en), [EU:C:2021:503](./../../../legal-content/EN/TXT/PDF/?uri=ecli:ECLI%3AEU%3AC%3A2021%3A503), paragraph [70](./../../../legal-content/EN/TXT/HTML/?uri=ecli:ECLI%3AEU%3AC%3A2021%3A503&anchor=#point70)).

(
[13](#c-ECR_62023CC0135_EN_01-E0013)
) Judgment of 7 December 2006, SGAE ([C‑306/05](./../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AC%3A2006%3A764&locale=en), [EU:C:2006:764](./../../../legal-content/EN/TXT/PDF/?uri=ecli:ECLI%3AEU%3AC%3A2006%3A764), ‘the judgment in SGAE’, point 1 of the operative part). That approach was confirmed in the order of 18 March 2010, Organismos Sillogikis Diacheirisis Dimiourgon Theatrikon kai Optikoakoustikon Ergon ([C‑136/09](./../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AC%3A2010%3A151&locale=en), not published, [EU:C:2010:151](./../../../legal-content/EN/TXT/PDF/?uri=ecli:ECLI%3AEU%3AC%3A2010%3A151)).

(
[14](#c-ECR_62023CC0135_EN_01-E0014)
) For specific examples of the various forms of acts of communication, see my Opinion in Stim and SAMI ([C‑753/18](./../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AC%3A2020%3A4&locale=en), [EU:C:2020:4](./../../../legal-content/EN/TXT/PDF/?uri=ecli:ECLI%3AEU%3AC%3A2020%3A4), points [33](./../../../legal-content/EN/TXT/HTML/?uri=ecli:ECLI%3AEU%3AC%3A2020%3A4&anchor=#point33) to [37](./../../../legal-content/EN/TXT/HTML/?uri=ecli:ECLI%3AEU%3AC%3A2020%3A4&anchor=#point37)).

(
[15](#c-ECR_62023CC0135_EN_01-E0015)
) See, to that effect, judgments of 22 June 2021, YouTube and Cyando ([C‑682/18 and C‑683/18](./../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AC%3A2021%3A503&locale=en), [EU:C:2021:503](./../../../legal-content/EN/TXT/PDF/?uri=ecli:ECLI%3AEU%3AC%3A2021%3A503), paragraph [79](./../../../legal-content/EN/TXT/HTML/?uri=ecli:ECLI%3AEU%3AC%3A2021%3A503&anchor=#point79)), and in Blue Air Aviation (paragraph 68).

(
[16](#c-ECR_62023CC0135_EN_01-E0016)
) Judgment in Stim and SAMI, in particular paragraphs 4 and 35.

(
[17](#c-ECR_62023CC0135_EN_01-E0017)
) Judgment of 22 June 2021, YouTube and Cyando ([C‑682/18 and C‑683/18](./../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AC%3A2021%3A503&locale=en), [EU:C:2021:503](./../../../legal-content/EN/TXT/PDF/?uri=ecli:ECLI%3AEU%3AC%3A2021%3A503), paragraphs [81](./../../../legal-content/EN/TXT/HTML/?uri=ecli:ECLI%3AEU%3AC%3A2021%3A503&anchor=#point81) to [86](./../../../legal-content/EN/TXT/HTML/?uri=ecli:ECLI%3AEU%3AC%3A2021%3A503&anchor=#point86)).

(
[18](#c-ECR_62023CC0135_EN_01-E0018)
) Judgment in Blue Air Aviation (paragraphs 69 and 71).

(
[19](#c-ECR_62023CC0135_EN_01-E0019)
) Judgment in SGAE (paragraphs 45 and 46).

(
[20](#c-ECR_62023CC0135_EN_01-E0020)
) Judgments in Stim and SAMI (in particular paragraph 38) and in Blue Air Aviation (paragraph 72).

(
[21](#c-ECR_62023CC0135_EN_01-E0021)
) According to the definition given in recital 23 of Directive 2001/29.

(
[22](#c-ECR_62023CC0135_EN_01-E0022)
) For example, the inclusion of a protected work on a webpage may or may not constitute a communication to the public of that work depending on the technique used – direct insertion or an ‘embedded link’ to another website – even if the end result is the same from the user’s point of view (see judgments of 7 August 2018, Renckhoff, [C‑161/17](./../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AC%3A2018%3A634&locale=en), [EU:C:2018:634](./../../../legal-content/EN/TXT/PDF/?uri=ecli:ECLI%3AEU%3AC%3A2018%3A634), and of 9 March 2021, VG Bild-Kunst, [C‑392/19](./../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AC%3A2021%3A181&locale=en), [EU:C:2021:181](./../../../legal-content/EN/TXT/PDF/?uri=ecli:ECLI%3AEU%3AC%3A2021%3A181)).

(
[23](#c-ECR_62023CC0135_EN_01-E0023)
) On the question of the existence of a public, see points 58 to 61 of this Opinion.

(
[24](#c-ECR_62023CC0135_EN_01-E0024)
) Judgment in SGAE (point 1 of the operative part).

(
[25](#c-ECR_62023CC0135_EN_01-E0025)
) Judgment in SGAE (paragraph 45 and paragraph 46 ab initio).

(
[26](#c-ECR_62023CC0135_EN_01-E0026)
) Judgment in SGAE (paragraph 46 in fine).

(
[27](#c-ECR_62023CC0135_EN_01-E0027)
) See wording of the questions referred for a preliminary ruling in paragraph 23 of the judgment in SGAE.

(
[28](#c-ECR_62023CC0135_EN_01-E0028)
) See, to that effect, judgment in SGAE (paragraphs 40 to 42).

(
[29](#c-ECR_62023CC0135_EN_01-E0029)
) As the Court established in paragraphs 38 and 39 of the judgment in SGAE.

(
[30](#c-ECR_62023CC0135_EN_01-E0030)
) See point 25 of this Opinion.

(
[31](#c-ECR_62023CC0135_EN_01-E0031)
) That paradox has already been noted with regard to the judgment of the Bundesgerichtshof (Federal Court of Justice) in Königshof, cited in point 6 of this Opinion. See Lucas-Schloetter, A., ‘L’harmonisation européenne du droit d’auteur. L’exemple du droit de communication au public. La réception de la jurisprudence de la CJUE en Allemagne’, in Favreau, A. (ed.), La propriété intellectuelle en dehors de ses frontières, Larcier, Brussels, 2019, p. 45.

(
[32](#c-ECR_62023CC0135_EN_01-E0032)
) In the sense, this time, of ‘public opinion’.

(
[33](#c-ECR_62023CC0135_EN_01-E0033)
) An indoor antenna must also be connected to the television set by a cable.

(
[34](#c-ECR_62023CC0135_EN_01-E0034)
) Judgment of 15 March 2012 ([C‑162/10](./../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AC%3A2012%3A141&locale=en), [EU:C:2012:141](./../../../legal-content/EN/TXT/PDF/?uri=ecli:ECLI%3AEU%3AC%3A2012%3A141), point [3](./../../../legal-content/EN/TXT/HTML/?uri=ecli:ECLI%3AEU%3AC%3A2012%3A141&anchor=#point3) of the operative part).

(
[35](#c-ECR_62023CC0135_EN_01-E0035)
) Judgment of 15 March 2012, ([C‑162/10](./../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AC%3A2012%3A141&locale=en), [EU:C:2012:141](./../../../legal-content/EN/TXT/PDF/?uri=ecli:ECLI%3AEU%3AC%3A2012%3A141), paragraph [67](./../../../legal-content/EN/TXT/HTML/?uri=ecli:ECLI%3AEU%3AC%3A2012%3A141&anchor=#point67)).

(
[36](#c-ECR_62023CC0135_EN_01-E0036)
) Judgment of 13 October 2011 ([C‑431/09 and C‑432/09](./../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AC%3A2011%3A648&locale=en), [EU:C:2011:648](./../../../legal-content/EN/TXT/PDF/?uri=ecli:ECLI%3AEU%3AC%3A2011%3A648)).

(
[37](#c-ECR_62023CC0135_EN_01-E0037)
) Judgment of 13 October 2011, Airfield and Canal Digitaal ([C‑431/09 and C‑432/09](./../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AC%3A2011%3A648&locale=en), [EU:C:2011:648](./../../../legal-content/EN/TXT/PDF/?uri=ecli:ECLI%3AEU%3AC%3A2011%3A648), paragraphs [69](./../../../legal-content/EN/TXT/HTML/?uri=ecli:ECLI%3AEU%3AC%3A2011%3A648&anchor=#point69) and [75](./../../../legal-content/EN/TXT/HTML/?uri=ecli:ECLI%3AEU%3AC%3A2011%3A648&anchor=#point75)).

(
[38](#c-ECR_62023CC0135_EN_01-E0038)
) See, in essence, judgment of 13 October 2011, Airfield and Canal Digitaal ([C‑431/09 and C‑432/09](./../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AC%3A2011%3A648&locale=en), [EU:C:2011:648](./../../../legal-content/EN/TXT/PDF/?uri=ecli:ECLI%3AEU%3AC%3A2011%3A648), paragraphs [82](./../../../legal-content/EN/TXT/HTML/?uri=ecli:ECLI%3AEU%3AC%3A2011%3A648&anchor=#point82) and [83](./../../../legal-content/EN/TXT/HTML/?uri=ecli:ECLI%3AEU%3AC%3A2011%3A648&anchor=#point83) and operative part).

(
[39](#c-ECR_62023CC0135_EN_01-E0039)
) Judgment of 25 May 2023 ([C‑290/21](./../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AC%3A2023%3A424&locale=en), [EU:C:2023:424](./../../../legal-content/EN/TXT/PDF/?uri=ecli:ECLI%3AEU%3AC%3A2023%3A424), paragraph [29](./../../../legal-content/EN/TXT/HTML/?uri=ecli:ECLI%3AEU%3AC%3A2023%3A424&anchor=#point29)).

(
[40](#c-ECR_62023CC0135_EN_01-E0040)
) See, inter alia, judgments of 4 October 2011, Football Association Premier League and Others ([C‑403/08 and C‑429/08](./../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AC%3A2011%3A631&locale=en), [EU:C:2011:631](./../../../legal-content/EN/TXT/PDF/?uri=ecli:ECLI%3AEU%3AC%3A2011%3A631)); of 15 March 2012, Phonographic Performance (Ireland) ([C‑162/10](./../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AC%3A2012%3A141&locale=en), [EU:C:2012:141](./../../../legal-content/EN/TXT/PDF/?uri=ecli:ECLI%3AEU%3AC%3A2012%3A141)); and of 31 May 2016, Reha Training ([C‑117/15](./../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AC%3A2016%3A379&locale=en), [EU:C:2016:379](./../../../legal-content/EN/TXT/PDF/?uri=ecli:ECLI%3AEU%3AC%3A2016%3A379)). See also judgment in Blue Air Aviation.

(
[41](#c-ECR_62023CC0135_EN_01-E0041)
) See, to that effect, recently, judgment in Blue Air Aviation (paragraph 53).

(
[42](#c-ECR_62023CC0135_EN_01-E0042)
) Judgment in Stim and SAMI (paragraphs 33 to 36).

(
[43](#c-ECR_62023CC0135_EN_01-E0043)
) See point 26 of this Opinion.

(
[44](#c-ECR_62023CC0135_EN_01-E0044)
) See point 42 of this Opinion.

(
[45](#c-ECR_62023CC0135_EN_01-E0045)
) Certainly since the entry into force of Directive 2001/29.

(
[46](#c-ECR_62023CC0135_EN_01-E0046)
) See, to that effect, Mouron, Ph., ‘Autoradios et droit de communication au public’, Revue Lamy droit de l’immatériel: informatique, médias, communication, No 170, 2020, p. 24.

(
[47](#c-ECR_62023CC0135_EN_01-E0047)
) [C‑753/18](./../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AC%3A2020%3A4&locale=en), [EU:C:2020:4](./../../../legal-content/EN/TXT/PDF/?uri=ecli:ECLI%3AEU%3AC%3A2020%3A4) (paragraph [42](./../../../legal-content/EN/TXT/HTML/?uri=ecli:ECLI%3AEU%3AC%3A2020%3A4&anchor=#point42)).

(
[48](#c-ECR_62023CC0135_EN_01-E0048)
) Judgment in Stim and SAMI (paragraph 34).

(
[49](#c-ECR_62023CC0135_EN_01-E0049)
) See, to that effect, judgment in SGAE (paragraph 44).

(
[50](#c-ECR_62023CC0135_EN_01-E0050)
) Judgment in Blue Air Aviation (point 2 of the operative part).

(
[51](#c-ECR_62023CC0135_EN_01-E0051)
) Judgment in Blue Air Aviation (point 1 of the operative part).

(
[52](#c-ECR_62023CC0135_EN_01-E0052)
) Judgment in SGAE (point 1 of the operative part).

(
[53](#c-ECR_62023CC0135_EN_01-E0053)
) See, most recently, judgment of 13 July 2023, Ocilion IPTV Technologies ([C‑426/21](./../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AC%3A2023%3A564&locale=en), [EU:C:2023:564](./../../../legal-content/EN/TXT/PDF/?uri=ecli:ECLI%3AEU%3AC%3A2023%3A564), paragraph [47](./../../../legal-content/EN/TXT/HTML/?uri=ecli:ECLI%3AEU%3AC%3A2023%3A564&anchor=#point47) and the case-law cited).

(
[54](#c-ECR_62023CC0135_EN_01-E0054)
) See, to that effect, order of 18 March 2010, Organismos Sillogikis Diacheirisis Dimiourgon Theatrikon kai Optikoakoustikon Ergon ([C‑136/09](./../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AC%3A2010%3A151&locale=en), not published, [EU:C:2010:151](./../../../legal-content/EN/TXT/PDF/?uri=ecli:ECLI%3AEU%3AC%3A2010%3A151), paragraph [41](./../../../legal-content/EN/TXT/HTML/?uri=ecli:ECLI%3AEU%3AC%3A2010%3A151&anchor=#point41)).

(
[55](#c-ECR_62023CC0135_EN_01-E0055)
) Judgment in SGAE (paragraph 38).

(
[56](#c-ECR_62023CC0135_EN_01-E0056)
) Judgment in SGAE (paragraph 42).

(
[57](#c-ECR_62023CC0135_EN_01-E0057)
) Judgment in SGAE (paragraph 41).

(
[58](#c-ECR_62023CC0135_EN_01-E0058)
) In other words, when the rental is exclusive and long term, even if in reality the tenant only occupies the apartment temporarily and for short periods.

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