On 25 October 2016, Advocate General Szpunar ("AG") issued an opinion on the interpretation of the terms "communication to the public" and "places accessible to the public against payment of an entrance fee" (Case C 641-15, Verwertungsgesellschaft Rundfunk v Hettegger Hotel Edelweiss). In essence, the AG is of the opinion that hotel rooms do not qualify as "places accessible to the public against payment of an entrance fee" under Copyright law.
The opinion of the AG stems from a reference for a preliminary ruling from the Vienna Commercial Court in proceedings between Verwertungsgesellschaft Rundfunk ("Rundfunk") – a collecting society for the management of copyright and related rights – and Hettegger Hotel Edelweiss ("Edelweiss"). Rundfunk is a collecting society representing the interests of television broadcasters and sought to impose a levy on Edelweiss. Rundfunk argued that Edelweiss, by enabling a television signal to be received in the rooms of the hotel which it operates, is communicating to the public the broadcasts of television broadcasters in a place accessible to the public against payment of an entrance fee. According to Rundfunk, Edelweiss must thus pay the appropriate fees to obtain authorisation from the right holders.
The Vienna Commercial Court decided to stay the proceedings and refer a question to the Court of Justice of the European Union ("ECJ") concerning the interpretation of Article 8(3) of Directive 2006/115/EC of 12 December 2006 on rental rights and on certain rights related to copyright in the field of intellectual property ("Rental Rights Directive").
With regard to the term "communication to the public", the AG departed from the previous case law of the ECJ and stated that installing television sets in hotel rooms and providing a television signal via them constitutes communication to the public within the meaning of Article 3(1) of Directive 2001/29/EC of 22 May 2001 on the harmonisation of copyright and related rights in the information society ("InfoSoc Directive").
However, the object of the relevant provision under the Rental Rights Directive is different from that of the InfoSoc Directive. Under the Rental Rights Directive, the exclusive right of broadcasting organisations is limited to situations where communication to the public takes place in "places accessible to the public against payment of an entrance fee". According to the AG, the interpretation of that term is not straightforward. Therefore, the AG examined whether hotel rooms constitute places accessible to the public against payment of an entrance fee.
First, the AG adopted a historical approach to the interpretation of the Article 8(3) of the Rental Rights Directive. Article 8(3) is modelled on Article 13(d) of the Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations of 26 October 1961 ("Rome Convention"), which also restricts the scope of the right of communication to the public to places accessible to the public against payment of an entrance fee. Therefore, the intention of the EU legislator was to protect the rights of broadcasting organisations to authorise or prohibit the communication to the public of their broadcasts to the extent to which that right is protected by the Rome Convention.
In this context, the AG specified that the term "payment of an entrance fee" must not be interpreted literally. When a fee is not directly linked to the possibility of viewing a television broadcast but is merely being levied for other services, such as catering services, that situation does not fall within the scope of the term "places accessible to the public against payment of an entrance fee".
Second, the AG also embraced a dynamic approach and interpreted Article 8(3) of the Rental Rights Directive under current technical and market conditions. The AG specified that such a dynamic interpretation is justified only if it takes account of the objective of the provisions at issue and if that objective cannot be replaced with another objective. Accordingly, the AG insisted on the fact that the signatories of the Rome Convention aimed to exclude from the scope of the exclusive right cases of communication to the public of broadcasts in places such as catering establishments where no special fees are levied for communicating those broadcasts. Consequently, a dynamic interpretation requires that hotel rooms also be excluded from the scope of the exclusive right, based on the objective of Article 13(d) of the Rome Convention.
On that basis, the AG concluded that the communication of a television or radio signal through television sets installed in hotel rooms does not constitute communication to the public of broadcasts of broadcasting organisations in a place accessible to the public against payment of an entrance fee within the meaning of Article 8(3) of Directive 2006/115/EC.
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