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ECJ Confirms guidlines for infringement by broadcasting to a new public

Written by Thomas Mould on 07 July 2016

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Café, restaurants and hotel and spa operators need licences in place to make sure that they are legally compliant in broadcasting TV and radio programs to their customers. A recent decision of the European Court of Justice confirmed this and considered the guidelines in establishing whether there has been communication to a new public. Confusingly however, in Società Consortile Fonografici (SCF) v Marco Del Corso, the ECJ held that patients in a dentist’s surgery did not amount to “a public” (C-135/10).

Facts of the case

R operated an accident rehabilitation centre and had installed, in its waiting rooms and training room, televisions for the benefit of the patients waiting. A collecting society, G, sued R for unpaid royalties for the broadcast of those programmes, arguing that it amounted to a communication to the public of works.

A German regional court referred various questions to the ECJ.

Decision

The patients constituted a new public, as they could not enjoy works broadcast without the targeted intervention of the operator of the centre. As the dispute concerned royalty payments for the making available of protected works in that centre, those patients were clearly not taken into account when the original authorisation for the work to be made available was given.

The broadcasting of television programmes on television sets, being intended to create a diversion for the patients of a rehabilitation centre during their treatment or waiting time, constituted the supply of additional services which had an impact on the establishment’s standing and attractiveness, which gave it a competitive advantage. So, the broadcasting had a profit-making nature, capable of being taken into account in order to determine the amount of remuneration due for that broadcast.

Here, café-restaurants, hotels or spa establishments were comparable to the operator of a rehabilitation centre intentionally broadcasting protected works to its patients by means of television sets installed in several places in that establishment. So the operator had carried out an act of communication.

 The Law

EU member states (under EU copyright law) must 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 (Article 3(1), Copyright Directive)

Member states must further 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 that 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 (Article 8(2), Rental Directive) (Article 8(2)).

 

 

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