1 This request for a preliminary ruling concerns the interpretation of 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), and Article 8(2) of Directive 2006/115/EC of the European Parliament and of the Council of 12 December 2006 on rental right and lending right and on certain rights related to copyright in the field of intellectual property (OJ 2006 L 376, p. 28).
2 This request has been made in proceedings between Reha Training Gesellschaft für Sport- und Unfallrehabilitation mbH (‘Reha Training’), which operates a rehabilitation centre, and Gesellschaft für musikalische Aufführungs- und mechanische Vervielfältigungsrechte eV (GEMA), the company entrusted with the collective management of copyright in the musical sector in Germany, concerning the refusal of Reha Training to pay royalties on copyright and related rights in connection with making available protected works at that company’s premises.
3 Recitals 9, 10, 20 and 23 of Directive 2001/29 are worded as follows: ‘(9) Any harmonisation of copyright and related rights must take as a basis a high level of protection, since such rights are crucial to intellectual creation. Their protection helps to ensure the maintenance and development of creativity in the interests of authors, performers, producers, consumers, culture, industry and the public at large. Intellectual property has therefore been recognised as an integral part of property. (10) If authors or performers are to continue their creative and artistic work, they have to receive an appropriate reward for the use of their work, as must producers in order to be able to finance this work. The investment required to produce products such as phonograms, films or multimedia products, and services such as “on-demand” services, is considerable. Adequate legal protection of intellectual property rights is necessary in order to guarantee the availability of such a reward and provide the opportunity for satisfactory returns on this investment. … (20) This Directive is based on principles and rules already laid down in the Directives currently in force in this area, in particular [Council Directive 92/100/EEC 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), as amended by Council Directive 93/83/EEC of 29 October 1993 (OJ 1993 L 290, p. 9)]. It develops those principles and rules and places them in the context of the information society. The provisions of this Directive should be without prejudice to the provisions of those Directives, unless otherwise provided in this Directive. … (23) This Directive should harmonise further the author’s right of communication to the public. This right should be understood in a broad sense covering all communication to the public not present at the place where the communication originates. This right should cover any such transmission or retransmission of a work to the public by wire or wireless means, including broadcasting. This right should not cover any other acts.’
4 Article 3(1) of that directive 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.’
5 Article 12(2) of that directive states: ‘Protection of rights related to copyright under this Directive shall leave intact and shall in no way affect the protection of copyright.’
6 According to recital 3 of Directive 2006/115: ‘The adequate protection of copyright works and subject matter of related rights protection by rental and lending rights as well as the protection of the subject matter of related rights protection by the fixation right, distribution right, right to broadcast and communication to the public can accordingly be considered as being of fundamental importance for the economic and cultural development of the Community.’
7 Article 8(2) of that directive provides: ‘Member States shall provide a right in order to ensure that a single equitable remuneration is paid by the user, if a phonogram published for commercial purposes, or a reproduction of such phonogram, is used for broadcasting by wireless means or for any communication to the public, and to ensure that this remuneration is shared between the relevant performers and phonogram producers. Member States may, in the absence of agreement between the performers and phonogram producers, lay down the conditions as to the sharing of this remuneration between them.’
8 Directive 2006/115 codified and repealed Directive 92/100, as amended by Directive 93/98. However, Article 8 of Directive 2006/115 is drafted in identical terms to Article 8 of the repealed directive.
9 Paragraph 15(2) of the Gesetz über Urheberrecht und verwandte Schutzrechte (Law on copyright and related rights) of 9 September 1965 (BGBl. 1965 I, p. 1273), in the version applicable at the material time, provides: ‘The author shall have ... the exclusive right to communicate his work to the public in an intangible 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 (Article 19); 2. the right to make available to the public (Article 19a); 3. the right to broadcast (Article 20); 4. the right of communication by video or audio media (Article 21); 5. the right to communicate radio broadcasts and to make them available to the public (Article 22).’
10 Under Paragraph 15(3) of the Law on copyright and related rights: ‘Communication shall be public where it is intended for a large number of members of the public. Any person who is not connected by a personal relationship with the person exploiting the work or with other persons to whom the work is made perceivable or accessible in an intangible form shall be deemed to be a member of the public.’
11 The rehabilitation centre operated by Reha Training provides for accident victims to receive post-operative treatment on its premises with a view to permitting their rehabilitation.
12 Those premises include two waiting rooms and a training room in which, from June 2012 to June 2013, Reha Training allowed its patients to watch television programmes on television sets installed there. Those programmes could therefore be viewed by those who were at the rehabilitation centre for treatment.
13 Reha Training never requested permission from GEMA to broadcast those programmes. According to the latter, such broadcasting constitutes an act of communication to the public of works belonging to the repertoire it manages. Therefore, it billed that company, for the period from June 2012 to June 2013, for sums it considered to be due for royalties on the basis of the rates in force, and on failing to receive payment it brought an action before the Amtsgericht Köln (Local Court, Cologne) seeking an order for Reha Training to pay damages and interest in respect of those amounts.
14 Since the Amtsgericht Köln (Local Court, Cologne) granted that application, Reha Training lodged an appeal with the Landgericht Köln (Regional Court, Cologne) against that judgment.
15 The referring court takes the view, in accordance with the criteria set out in the Court’s case-law relating to the interpretation of Directive 2001/29, that the making available of television programmes by Reha Training constitutes a communication to the public. That court also considers that the same criteria should apply to determine whether there is ‘communication to the public’ within the meaning of Article 8(2) of Directive 2006/115, but that the judgment of 15 March 2012 in SCF (C-135/10, EU:C:2012:140), prevents it giving a decision.
16 In that judgment the Court of Justice held that patients of a dental practice are not ‘persons in general’. In the present case, since, as a rule, only the patients of Reha Training have access to the treatment provided by it, those patients cannot be categorised as ‘persons in general’, but constitute a ‘private group’.
17 In its judgment of 15 March 2012 in SCF (C-135/10, EU:C:2012:140) the Court also held that the number of patients of a dental practice is not large, indeed it is insignificant, given that the group of persons present in that practice at the same time is, in general, very small. The category of persons formed by the patients of Reha Training would also seem to be limited.
18 Moreover, in that judgment, the Court ruled that the usual patients of a dental practice do not willingly listen to music there, since they enjoy it by chance, but do not choose to do so. In the present case, the patients of Reha Training in the waiting rooms and the training room also view and hear the television programmes without any active wish or choice on their part.
19 Under those circumstances, the Landgericht Köln (Regional Court, Cologne) decided to stay its proceedings and to refer the following questions to the Court of Justice for a preliminary ruling: ‘(1) Is the question as to whether there is a “communication to the public” within the meaning of Article 3(1) of Directive 2001/29 and/or within the meaning of Article 8(2) of Directive 2006/115 always to be determined in accordance with the same criteria, namely that: - a user acts, in full knowledge of the consequences of its action, to provide access to the protected work to third parties which the latter would not have without that user’s intervention; - the term “public” refers to an indeterminate number of potential recipients of the service and, in addition, must consist of a fairly large number of persons, in which connection the indeterminate nature is established when “persons in general” - and therefore not persons belonging to a private group - are concerned, and “a fairly large number of persons” means that a certain de minimis threshold must be exceeded and that groups of persons concerned which are too small or insignificant therefore do not satisfy the criterion; in this connection not only is it relevant to know how many persons have access to the same work at the same time but it is also relevant to know how many of them have access to it in succession; - the public to which the work is communicated is a new public, that is to say, a public which the author of the work did not contemplate when he authorised its use by communication to the public, unless the subsequent communication uses a specific technical means which differs from that of the original communication; and - it is not irrelevant that the act of exploitation in question serves a profit-making purpose and also that the public is receptive to that communication and is not merely “reached” by chance, although this is not an essential condition for the existence of communication to the public? (2) In cases such as that in the main proceedings, in which the operator of a rehabilitation centre installs television sets on its premises, to which it transmits a broadcast signal and thus makes it possible for television programmes to be viewed and heard, is the question whether there is communication to the public to be assessed according to the concept of “communication to the public” under Article 3(1) of Directive 2001/29 or under Article 8(2) of Directive 2006/115 if the copyright and related rights of a wide range of persons concerned - in particular composers, songwriters and music publishers, but also performing artists, phonogram producers and authors of literary works as well as their publishing houses - are affected by the television programmes which have been made accessible? (3) In cases such as that in the main proceedings, in which the operator of a rehabilitation centre installs television sets on its premises, to which it transmits a broadcast signal, thus enabling its patients to watch television programmes, is there a “communication to the public” pursuant to Article 3(1) of Directive 2001/29 or pursuant to Article 8(2) of Directive 2006/115? (4) If the existence of communication to the public within this meaning is confirmed for cases such as that in the main proceedings, does the Court of Justice uphold its case-law according to which no communication to the public takes place in the event of the radio broadcasting of protected phonograms to patients in a dental practice (see judgment of 15 March 2012 in SCF, C-135/10, EU:C:2012:140) or similar establishments?’
20 By letter sent to the Court on 17 April 2015, the referring court indicated that Gesellschaft zur Verwertung von Leistungsschutzrechten mbH (GVL) had been granted leave to take part in the main proceedings.
21 Pursuant to the third paragraph of Article 16 of the Statute of the Court of Justice of the European Union, the French Government requested the Court to sit as a Grand Chamber.
22 By its first three questions, which it is appropriate to examine together, the referring court asks essentially, first, if, in a case such as that in the main proceedings, in which it is alleged that the broadcast of television programmes by means of television sets that the operator of a rehabilitation centre has installed in its premises affects copyright and related rights of a large number of interested parties, in particular, composers, songwriters and music publishers, but also performers, phonogram producers and authors of literary works and their publishers, the question whether such a situation constitutes a ‘communication to the public’ must be determined with regard to both Article 3(1) of Directive 2001/29 and Article 8(2) of Directive 2006/115 or only one of those provisions and, second, whether the existence of such communication must be determined with regard to the same criteria. It also asks whether such a broadcast constitutes an ‘act of communication to the public’ within the meaning of one and/or the other of those provisions.
23 In that connection, it must be recalled that, under Article 3(1) of Directive 2001/29, 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.
24 Furthermore, pursuant to Article 8(2) of Directive 2006/115, the legislation of the Member States must ensure, first, that a single equitable remuneration is paid by the user if a phonogram published for commercial purposes, or a reproduction of such phonogram, is used for broadcasting by wireless means or for any communication to the public, and, second, that that remuneration is shared between the relevant performers and phonogram producers concerned.
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).
26 No provision of Directive 2001/29 authorises a derogation from the principles laid down in Article 8(2) of Directive 2006/115.
27 It follows that Article 3(1) of Directive 2001/29 must be applied without prejudice to the application of Article 8(2) of Directive 2006/115.
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).
31 That being the case, there is no evidence that the EU legislature wished to confer on the concept of ‘communication to the public’ a different meaning in the respective contexts of Directives 2001/29 and 2006/115.
32 As the Advocate General noted, in point 34 of his Opinion, the different nature of the rights protected under those directives cannot hide the fact that, according to the wording of those directives, those rights have the same trigger, namely the communication to the public of protected works.
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.
34 Therefore, that concept must be assessed in accordance with the same criteria in order to avoid, inter alia, contradictory and incompatible interpretations depending on the applicable provision.
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.
50 It is in the latter context that the ‘receptivity’ of the public may be relevant, as the Court held in paragraph 91 of its judgment of 15 March 2012 in SCF (C‑135/10, EU:C:2012:140), in which it answered both the question relating to the existence of a communication to the public and the right to receive remuneration for such a communication.
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).
53 In the light of various criteria laid down by the case-law of the Court, it must be determined whether the broadcast of television programmes, such as that at issue in the main proceedings, may be categorised as a ‘communication to the public’ within the meaning of Article 3(1) of Directive 2001/29 and Article 8(2) of Directive 2006/115.
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.
55 Those situations are fully comparable with that at issue in the main proceedings in which, as is apparent from the order for reference, the operator of a rehabilitation centre intentionally broadcasts protected works to its patients by means of television sets installed in several places in that establishment.
56 Therefore, it must be held that such an operator carries out an act of communication.
57 In the second place, as regards the body of patients of a rehabilitation centre, such as that at issue in the main proceedings, it must be observed, first of all, that it is apparent from the documents submitted to the Court that they are persons in general.
58 Next, the circle of persons constituted by those patients is not ‘too small or insignificant’, it being understood, in particular, that those patients may enjoy works broadcast at the same time in several places in the establishment.
59 In those circumstances, it must be held that the body of patients of a rehabilitation centre, such as that at issue in the main proceedings, constitute a ‘public’, within the meaning of Article 3(1) of Directive 2001/29 and Article 8(2) of Directive 2006/115.
60 Finally, the patients of such a rehabilitation centre cannot, in principle, enjoy works broadcast without the targeted intervention of the operator of that centre. Furthermore, since the origin of the dispute in the main proceedings concerns the payment of royalties for copyright and related rights for the making available of protected works in that centre, it must be observed that those patients were clearly not taken into account when the original authorisation for the work to be made available was given.
61 It follows that the patients of a rehabilitation centre, such as that at issue in the main proceedings, constitutes a ‘new public’ within the meaning of the case-law referred to in paragraph 45 of the present judgment.
62 Having regard to the foregoing considerations, it must be held that the operator of a rehabilitation centre, such as that at issue in the main proceedings, carries out a communication to the public.
63 In the third place, as regards the profit-making nature of such a communication, it must be stated, as the Advocate General observed in point 71 of his Opinion, that, in the present case, the broadcasting of television programmes on television sets, in so far as it is intended to create a diversion for the patients of a rehabilitation centre, such as that at issue in the main proceedings, during their treatment or in the waiting time, constitutes the supply of additional services which, while not having any medical benefit, does have an impact on the establishment’s standing and attractiveness, thereby giving it a competitive advantage.
64 It follows that, in a situation such as that at issue in the main proceedings, the broadcasting of television programmes by the operator of a rehabilitation centre, such as Reha Training, has a profit-making nature, capable of being taken into account in order to determine the amount of remuneration due, where appropriate, for such a broadcast.
65 Having regard to all of the foregoing considerations, the answer to the first three questions is that, in a case such as that in the main proceedings, in which it is alleged that the broadcast of television programmes by means of television sets that the operator of a rehabilitation centre has installed in its premises affects the copyright and related rights of a large number of interested parties, in particular, composers, songwriters and music publishers, but also performers, phonogram producers and authors of literary works and their publishers, it must be determined whether such a situation constitutes a ‘communication to the public’, with regards to both Article 3(1) of Directive 2001/29 and Article 8(2) of Directive 2006/115 and in accordance with the same interpretation criteria. Furthermore, those two provisions must be interpreted as meaning that such a broadcast constitutes an act of ‘communication to the public’.
66 In view of the reply given to the first three questions, it is unnecessary to reply to the fourth question.
67 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.