Reha Training Gesellschaft für Sport- und Unfallrehabilitation mbH v Gesellschaft für musikalische Aufführungs- und mechanische Vervielfältigungsrechte eV (GEMA).
Date: 2016-05-31
25


In that connection, it must be observed that recital 20 of Directive 2001/29 provides, inter alia, that the provisions of that directive must apply, in principle, without prejudice to Directive 92/100, as amended by Directive 93/98, which was codified and repealed by Directive 2006/115, unless Directive 2001/29 provides otherwise (see, to that effect, judgment of 9 February 2012 in Luksan, C‑277/10, EU:C:2012:65, paragraph 43 and the case-law cited).
28


Moreover, given the requirements of unity and coherence of the European Union legal order, the concepts used by Directives 2001/29 and 2006/115 must have the same meaning, unless the EU legislature has, in a specific legislative context, expressed a different intention (see, to that effect, judgment of 4 October 2011 in Football Association Premier League and Others, C‑403/08 and C‑429/08, EU:C:2011:631, paragraph 188).
29


It is true, as is clear from a comparison of Article 3(1) of Directive 2001/29 and Article 8(2) of Directive 2006/115, that the concept of ‘communication to the public’ appearing in those provisions is used in contexts which are not the same and pursue objectives which, while similar, are however in part divergent (see, to that effect, judgment of 15 March 2012 in SCF, C‑135/10, EU:C:2012:140, paragraph 74).
30


Under Article 3(1) of Directive 2001/29, authors have a right which is preventive in nature and allows them to intervene, between possible users of their work and the communication to the public which such users might contemplate making, in order to prohibit such use. However, under Article 8(2) of Directive 2006/115, performers and producers of phonograms have a right which is compensatory in nature, which is not liable to be exercised before a phonogram published for commercial purposes, or a reproduction of such a phonogram, has been used for communication to the public by a user (see, to that effect, judgment of 15 March 2012 in SCF, C‑135/10, EU:C:2012:140, paragraph 75).
33


It follows from the foregoing that, in a case such as that in the main proceedings, concerning the broadcast of television programmes which allegedly affects not only copyright but also, inter alia, the rights of performers or phonogram producers, both Article 3(1) of Directive 2001/29 and Article 8(2) of Directive 2006/115 must be applied, whilst giving the concept of ‘communication to the public’ in both those provisions the same meaning.
35


In that connection, the Court has already held that, in order to determine whether there has been a communication to the public, account has to be taken of several complementary criteria, which are not autonomous and are interdependent. Since those criteria may, in different situations, be present to widely varying degrees, they must be applied both individually and in their interaction with one another (see, to that effect, judgment of 15 March 2012 in Phonographic Performance (Ireland), C‑162/10, EU:C:2012:141, paragraph 30 and the case-law cited).
36


Furthermore, it must be recalled that the concept of ‘communication to the public’ must be interpreted broadly, as recital 23 of Directive 2001/29 indeed expressly states (see, to that effect, judgment of 7 March 2013 in ITV Broadcasting and Others, C‑607/11, EU:C:2013:147, paragraph 20 and the case-law cited).
37


The Court has also previously held that the concept of ‘communication to the public’ includes two cumulative criteria, namely, an ‘act of communication’ of a work and the communication of that work to a ‘public’ (judgment of 19 November 2015 in SBS Belgium, C‑325/14, EU:C:2015:764, paragraph 15 and the case-law cited).
38


That said, it must be stated, first, as regards the concept of the ‘act of communication’, that that refers to any transmission of the protected works, irrespective of the technical means or process used (see, to that effect, judgment of 19 November 2015 in SBS Belgium, C‑325/14, EU:C:2015:764, paragraph 16 and the case-law cited).
39


Moreover, every transmission or retransmission of a work which uses a specific technical means must, as a rule, be individually authorised by the author of the work in question (judgment of 19 November 2015 in SBS Belgium, C‑325/14, EU:C:2015:764, paragraph 17 and the case-law cited).
40


Secondly, in order to fall within the concept of ‘communication to the public’, within the meaning of Article 3(1) of Directive 2001/29, it is necessary, as stated in paragraph 37 of the present judgment, that protected works must actually be communicated to a ‘public’.
41


In that connection, it follows from the case-law of the Court, in the first place, that the term ‘public’ refers to an indeterminate number of potential recipients and implies, moreover, a fairly large number of persons (see, to that effect, judgment of 7 December 2006 in SGAE, C‑306/05, EU:C:2006:764, paragraphs 37 and 38 and the case-law cited).
42


As regards, to begin with, the ‘indeterminate’ nature of the public, the Court has observed that it means making a work perceptible in any appropriate manner to ‘persons in general’, that is, not restricted to specific individuals belonging to a private group (see, to that effect, judgment of 15 March 2012 in SCF, C‑135/10, EU:C:2012:140, paragraph 85).
43


Next, as regards, the criterion of ‘a fairly large number of people’, this is intended to indicate that the concept of ‘public’ encompasses a ‘certain de minimis threshold’, which excludes from the concept groups of persons which are too small, or insignificant (see, to that effect, judgment of 15 March 2012 in SCF, C‑135/10, EU:C:2012:140, paragraph 86).
44


In order to determine the size of that audience, account must be taken of the cumulative effects of making works available to potential audiences (see, to that effect, judgment of 7 December 2006 in SGAE, C‑306/05, EU:C:2006:764, paragraph 39). It is relevant, inter alia, to know how many persons have access to the same work at the same time and how many of them have access to it in succession (see, to that effect, judgment of 15 March 2012 in Phonographic Performance (Ireland), C‑162/10, EU:C:2012:141, paragraph 35).
45


In the second place, the Court has held that, in order to fall within the concept of ‘communication to the public’ the work broadcast must be transmitted to a ‘new public’, that is to say, to a public which was not taken into account by the authors of the protected works when they authorised their use by the communication to the original public (see, to that effect, judgments of 7 December 2006 in SGAE, C‑306/05, EU:C:2006:764, paragraphs 40 and 42, and 4 October 2011 in Football Association Premier League and Others, C‑403/08 and C‑429/08, EU:C:2011:631, paragraph 197).
46


In that context, the Court emphasised the indispensable role of the user. It has held that, in order for there to be a communication to the public, that user must, in full knowledge of the consequences of its actions, give access to the television broadcast containing the protected work to an additional public and that it appears thereby that, in the absence of that intervention those ‘new’ viewers are unable to enjoy the broadcast works, although physically within the broadcast’s catchment area (see, to that effect, judgments of 7 December 2006 in SGAE, C‑306/05, EU:C:2006:764, paragraph 42 and 4 October 2011 in Football Association Premier League and Others, C‑403/08 and C‑429/08, EU:C:2011:631, paragraph 195).
47


Thus, the Court has already held that the operators of a café-restaurant, a hotel or a spa establishment are such users and make a communication to the public if they intentionally broadcast protected works to their clientele, by intentionally distributing a signal by means of television or radio sets that they have installed in their establishment (see, to that effect, judgments of 7 December 2006 in SGAE, C‑306/05, EU:C:2006:764, paragraphs 42 and 47; 4 October 2011 in Football Association Premier League and Others, C‑403/08 and C‑429/08, EU:C:2011:631, paragraph 196; and 27 February 2014 in OSA, C‑351/12, EU:C:2014:110, paragraph 26).
48


It is therefore understood that the public which is the subject of the communication in these establishments is not merely ‘caught’ by chance, but is targeted by their operators (see, to that effect, judgment of 15 March 2012 in SCF, C‑135/10, EU:C:2012:140, paragraph 91).
49


It must also be stated that although it is true that the profit-making nature of the broadcast of a protective work does not determine conclusively whether a transmission is to be categorised as a ‘communication to the public’ (see, to that effect, judgment of 7 March 2013 in ITV Broadcasting and Others, C‑607/11, EU:C:2013:147, paragraph 43), it is not however irrelevant (see, to that effect, judgment of 4 October 2011 in Football Association Premier League and Others, C‑403/08 and C‑429/08, EU:C:2011:631, paragraph 204 and the case-law cited), in particular, for the purpose of determining any remuneration due in respect of that transmission.
51


Thus, the Court held that the broadcast of protected works has a profit-making nature where the user is likely to obtain an economic benefit related to the attractiveness of, and, therefore, the greater number of people attending the establishment in which it makes those broadcasts (see, to that effect, judgment of 4 October 2011 in Football Association Premier League and Others, C‑403/08 and C‑429/08, EU:C:2011:631, paragraphs 205 and 206).
52


As regards the broadcast of phonograms in a dental practice, the Court considered, by contrast, that that is not the case, since the patients of a dentist do not, as a general rule, give any importance to such a broadcast, so that it is not of such a nature as to increase the practice’s attractiveness and, therefore, the number of people going to that practice (see to that effect, in judgment of 15 March 2012 in SCF, C‑135/10, EU:C:2012:140, paragraph 97 and 98).
54


In that connection, in the first place, as stated in paragraph 47 of the present judgment, the Court has already held that the operators of a café-restaurant, a hotel or a spa establishment carry out an act of communication where they intentionally broadcast protected works to their clientele by intentionally distributing a signal by means of television or radio sets which they have installed in their establishment.