Case C-117/15, Reha Training – communicating copyright protected works not to the public but to private patients [judgment 2016, ECLI:EU:C:2016:379]

Reha Training runs a recuperation and physiotherapy centre for injured patients. A couple of the rooms in its centre were each equipped with a television set. Staff left these sets on for anyone in those rooms to watch television. The centre is now being sued for copyright infringement. It is alleged that these sets are communicating copyright-protected works to the public, and the centre has not paid for the right to do this. The centre denies any legal liability; in its view, its patients do not form a legally-relevant ‘public’.

Background
Reha Training is a German company offering physiotherapy and health-related recuperation-services inside a centre which it runs in the German city of Leverkusen. Besides a number of treatment rooms, there are a couple of recreation rooms which are each furnished with a television set. The sets are left on for anyone in the rooms to watch television.

This fact has caused the centre to be sued for copyright infringement. The basis for the legal action is that television programmes contain all manner of copyright-protected works, and the centre has not paid for the right to ‘communicate’ those copyright-protected works ‘to the public’. This is contrary to the EU’s ‘InfoSoc’ Directive 2001/29 on the harmonisation of certain aspects of copyright and related rights in the information society (OJ 2001 L167/10).

Article 3(1) of the Directive is entitled ‘Right of communication to the public of works and right of making available to the public other subject-matter’, and 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.

The centre says that there is no legal basis for demanding any money from the centre for there is no ‘communication to the public’. It points out that it is generally its patients who are watching the television sets. Its patients are there for medical treatment. In the centre’s view, their patients do not qualify as the ‘public’, as that term has been defined in EU law. Namely, in Case 135/10, SCF, EU:C:2012:140, the CJEU held that music on the radio that was being played in a dentist’s waiting room, did not constitute a ‘communication to the public’ because the people in the waiting room were not a ‘public’. Applying that legal principle here, the centre says its television sets are not communicating copyright-protected works to the public so no legal liability arises. No money is owed.

The dispute ended up in court and involved not only the centre but also various German bodies which collect monies on behalf of authors – those collecting societies being VG Wort, Bild-Kunst, GÜFA, VGF, GWFF and the GVL.

The Cologne court hearing the dispute identified the various criteria which the CJEU had set out in its case law surrounding the concept of ‘a communication to the public’.

It noted that the key hurdle to the rights organisations successfully establishing their case was the effect of the CJEU’s ‘dentist’s waiting room’ judgment in SCF, and the proper relationship of that judgment to others from the CJEU including, Case C-306/05 SGAE, Joined Cases C-403/08 and C-429/08 Football Association Premier League, Case C-162/10 Phonographic Performance (Ireland), and Case C-351/12, OSA (Ochranný svaz autorský).

The Cologne court did not know how to resolve the case partly because the CJEU’s ‘dentist’s waiting room’ judgment did not interpret the ‘communication to the public’ right enshrined in Article 3 of Directive 2001/29; rather, the CJEU in that case had been interpreting a right granted to performing artists under Article 8(2) of the EU’s rental and lending rights Directive 92/100, now Directive 2006/115/EC (OJ 2006 L376/28).

Consequently, the Cologne court decided to make a reference to the CJEU, and pointed out that there were a great many similar cases currently pending before the German courts.

Questions Referred
According to the Curia website, the Cologne Landgericht has asked:

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 a 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 the television programmes to be viewed and heard, is the question whether there is a 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 and thus makes television programmes accessible to its patients, 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 a communication to the public within this meaning is confirmed for cases such as that in the main proceedings, does the Court of Justice thereby 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 the judgment of 15 March 2012 in SCF, C-135/10) […] or similar establishments?

Update – 6 August 2015
The Portuguese reference from Coimbra has been decided by the Third Chamber of the CJEU in the form of a written order dated 14 July 2015.