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European Business Law

An exclusive right to authorize or prohibit any availability to the public, by wire or wireless means, in such a way that each person may access them from a place and at a time individually chosen by that person , is recognized to authors on their works, to performers on the fixations of their performances, to phonograph producers on their phonograms, to producers on the first fixations of films,  …

Rights of communication and rights to make available

An exclusive right to authorize or prohibit any availability to the public, by wire or wireless means, in such a way that each person may access them from a place and at a time individually chosen by that person , is recognized to authors on their works, to performers on the fixations of their performances, to phonograph producers on their phonograms, to producers on the first fixations of films, on the original and copies of such films, to broadcasting organizations on fixations of their broadcasts (Article 3).

The availability right is coupled for authors with an exclusive right of communication of the work to the public . This right is understood in the broad sense and covers all communication to the public not present at the place where the communication originates, as well as any transmission or retransmission of that nature, by wire or wireless means, but does “not cover any other acts” (recital 23) . Therefore, direct performances, including online , do not fall within the scope of application of the directive . In other words, to be categorized as a “communication to the public”, a protected work must be communicated using specific technical means, different from those previously used or, failing that, to a “new public” i.e. a public that was not already taken into account by the copyright holders when they authorized the initial communication to the public of their work . In the absence of the consent of the author concerned, such a re-transmission of a work by means of an internet stream is not permitted unless it falls within the scope of Article 5 of Directive No 2001/29, which sets out an exhaustive list of exceptions and limitations to the right of communication to the public or of Article 9, which is intended to maintain the provisions applicable in areas other than that harmonized by the directive .

The concepts of “communication” and “public” are interpreted widely as the principal objective of Directive No 2001/29 is to establish a high level of protection of authors, allowing them to obtain an appropriate reward for the use of their works, including on the occasion of a “communication to the public” . The supply to the public by downloading, for permanent use, of an e-book is covered by the concept of communication to the public and, more specifically, by that of making available to the public of authors’ 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 distribution of a signal through television sets to customers in hotel rooms , in a bar-restaurant  or by the operator of a block apartments for rent , constitutes communication to the public. The word “public” refers to an undetermined number of potential listeners . This is the case for hotel customers who have a television set in their room, who, even if they quickly succeed each other, ultimately represent a fairly large number of persons. Given the cumulative effects resulting from the repeated availability of works, the mere availability of access means to the works is sufficient, in such a case, to identify communication to the public, irrespective of their actual use. In accordance with Article 11bis, paragraph 1(ii) of the Bern Convention, such a broadcast constitutes a communication made by a broadcasting organization other than the original one to a public different from the public at which the original act of communication of the work is directed . However, when the author authorizes the broadcast of his work, he considers only direct users, i.e. the owners of reception equipment who, either personally or within their own private or family circles, receive the programs. Hotel guests therefore constitute a new audience for which the author, whose right is not exhausted by an act of communication to the public, or availability to the public, has not authorized communication of his work (Directive No 2001/29, Article 3(2)) . Likewise, the transmission of works included in a terrestrial broadcast and the making available of those works over the internet must be authorized individually and separately by the authors concerned given that each is made under specific technical conditions, using a different means of transmission for the protected works and each is intended for a public . Knowingly posting, on a website, hyperlinks to protected works, which are freely available on another website without the consent of the copyright holder, constitutes a “communication to the public” within the meaning of Article 3(1) of Directive No 2001/29 , as does the making available by users of a file and video sharing of uploaded content, the sharing of such content or the publication of download links giving access to such content when it is a protected work . On the other hand this is not the case for the inclusion of hyperlinks redirecting users to works freely communicated to the public on another website  , for car rentals equipped with radios  or the transmission by electronic means to a court, as evidence, of a protected work . The transmission by a broadcasting organization of its program-carrying signals exclusively to signal distributors is not a communication without those signals being accessible to the public during, and as a result of that transmission, with those distributors then sending those signals to their respective subscribers so that they may watch those programs, unless the intervention of the distributors in question is just a technical means . Furthermore, it is irrelevant that the acts of communication by which the work is made available to the public have a public or private nature, this condition being required neither by Directive No 2001/29, nor by Article 8 of the WIPO Copyright Treaty of 20 December 1996 . 

Moreover, in the Recommendation of 18 may 2005, the Commission specified the concept of right of communication to the public of musical works. It includes webcasting, internet radio, simulcasting, and near-on-demand services received either on a personal computer or a mobile telephone. The exclusive right of making available a musical work includes on-demand and other interactive services .

As Directive No 2001/29 applies without prejudice to any other applicable law in the field, unless it states otherwise, the right of communication to the public recognized as a right related to copyright falls within the scope of Directive No 2006/115, Article 8 of which provides that “Member States shall provide for performers the exclusive right to authorize or prohibit the broadcasting by wireless means and the communication to the public of their performances, except where the performance is itself already a broadcast performance or is made from a fixation”. According to the Court of Justice, the broadcasting, free of charge, of phonograms within private dental practices engaged in professional economic activity, for the benefit of patients of those practices and enjoyed by them without any active choice on their part, does not constitute a “communication to the public” and does not entitle the phonogram producers to the payment of remuneration . On the other hand, there is a communication to the public where a hotel operator provides in guest bedrooms television and/or radios to which it distributes a broadcast signal or other apparatus, as well as phonograms in physical or digital format capable of being broadcast or heard by means of that apparatus .

Exceptions or limitations may be provided for by Member States to the right of communication, in particular for use for the sole purpose of illustration for teaching or scientific research or for the benefit of people with a disability, where the use has a non-commercial nature (Article 5(3)), or use for the purpose of public security, information (for political speeches), for religious or official celebrations, for permanent exhibition in public places (for works of architecture or sculpture). Communication to the public or making available of published articles on current economic, political or religious topics or of broadcast works or other protected subject-matter of the same character, is also possible where the use is not expressly reserved and the source, including the author's name, is indicated. A Member State cannot allocate exploitation rights of a cinematographic work by operation of law exclusively to the producer of the work in question, where they are vested directly, originally and exclusively in the principal director .

Case C-279/13 C More Entertainment AB v Linus Sandberg, Judgment of 26 March 2015, LawLex201500000430JBJ.

Directive No 2006/115/EC of 12 December 2006 on rental right and lending right and on certain rights related to copyright in the field of intellectual property, establishes in Article 8 a right of communication for performers, as regards the broadcasting by wireless means, unless the performance is itself already a broadcast performance or is made from a fixation. Broadcasting organizations have the exclusive right to authorize or prohibit the rebroadcasting of their broadcasts by wireless means, as well as the exclusive right regarding the communication to the public of their broadcasts if such communication is made in places accessible to the public against payment of an entrance fee. The exclusive right of fixation of their performances for performers and the exclusive right of fixation of their broadcasts, whether these broadcasts are transmitted by wire or over the air, including by cable or satellite, for broadcasting organizations is also laid down in the directive (Article 7).

Case C-403/08 Football Association Premier League LTD [2011]ECR I-9083, LawLex201100001693JBJ.

Case C-135/23 Gesellschaft für musikalische Aufführungs- und mechanische Vervielfältigungsrechte eV (GEMA), Judgment of 20 June 2024, LawLex202400008499JBJ, which held that the operator of a block of apartments, by equipping them with television sets and indoor aerials which, without any further intervention, pick up signals and allow broadcasts, in particular of music, into those apartments, is deliberately carrying out an intervention in order to grant its customers access to such broadcasts, inside the rented apartments and during the rental period, without it being decisive whether or not they make use of this possibility.

See Case C-192/04 Lagardère Active Broadcast [2005] ECR I-7199, LawLex200900002214JBJ, regarding application of Directive No 93/83/EEC of 27 September 1993 on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission.

The Court of Justice thus clarifed that the concept of communication to the public covers a retransmission of the works included in a terrestrial television broadcast made by an organization other than the original broadcaster, by means of an internet stream made available to the subscribers of that other organization who may receive that retransmission by logging on to its server, even though those subscribers are within the area of reception of that terrestrial television broadcast and may lawfully receive the broadcast on a television receiver: Case C-607/11 ITV Broadcasting Ltd, Judgment of 7 March 2013, LawLex201300000353JBJ.

See also for a spa establishment Case C-351/12 OSA, Judgment of 27 February 2014, LawLex201400001596JBJ, which qualifies as an act of communication to a new public the making available of radio broadcasts works to patients in a spa establishment.

Case C-607/11 ITV Broadcasting Ltd, Judgment of 7 March 2013, LawLex201300000353JBJ.

Case C-160-15 GS Media BV, Judgment of 8 September 2016, LawLex201600001389JBJ.

Cases C-682/18 and 683/18, Frank Peterson and Elsevier Inc v Google LLC and others, Judgment of 22 June 2021, LawLex202100004104JBJ: specifying that the operator of the platform does not make a communication to the public of that content, unless it contributes, beyond the mere provision of the platform, to giving the  public access to such content in violation of copyright; also see Case C-597/19 Mircom International Content Management & Consulting (M.I.C.M.) Limited, Judgment of 17 June 2021, LawLex202100003954JBJ: the uploading, from the terminal equipment of a user of a peer-to-peer network to such equipment of other users of that network, of pieces,  previously downloaded by that user, of a media file containing a  protected work, even though those pieces are usable in themselves only as from a certain download rate, constitutes making available to the  public; Case C-610/15 Stichting Brein, Judgment of 14 June 2017, LawLex201700001046JBJ, upholding the concept of "communication to the public'"within the meaning of Article 3(1) of Directive No 2001/29 for the making available and management, on the internet, of a  sharing platform which, by means of indexation of metadata referring to  protected works and the provision of a search engine, allows users of  that platform to locate those works and to share them in the context of a  peer-to-peer network.

Case C-466/12 Svensson and others, Judgment of 13 February 2014, LawLex201400000257JBJ, which states that Article 3 of Directive No 2001/29 does not permit Member States to give wider protection to copyright holders by laying down that the concept of communication to the public includes a wider range of activities than those referred to in that provision.

Case C-753/18, Föreningen Svenska Tonsättares Internationella Musikbyrå u.p.a. (Stim), Judgment of 2 April 2020, LawLex202000001655JBJ.

Case C-283/10 Circul Globus Bucuresti [2011] ECR I-12031, LawLex201200000222JBJ, the right of the author of a work to prohibit any communication to the public of that work only refers to the cases where the public is not present at the place where the communication originates, and not where the communication is carried out directly in a place open to the public using any means of public performance or direct presentation of the work.

Case C-637/19 BY v CX, Judgment of 28 October 2020, LawLex202100004716JBJ, stressing that this type of transmission constitutes a communication to a clearly defined and closed group of persons holding public service functions within a court, and not to an  indeterminate number of potential recipients.

Case C-325/14  SBS Belgium NV v Belgische Vereniging van Auteurs, Componisten en Uitgevers (SABAM), Judgment of 19 November 2015, LawLex201500001477JBJ.

Case C-306/05 SGAE [2006] ECR I-11519, LawLex200900002221JBJ, point 44.

Commission Recommendation No 2005/737 of 18 May 2005 on collective cross-border management of copyright and related rights for legitimate online music services, OJ L 276, 21 October 2005, 54-57, point 1), f), ii) et iii).

Case C-135/10 Società Consortile Fonografi (SCF), Judgment of 15 March 2012, LawLex201200000629JBJ.

Case C-162/10 Phonographic Performance Limited, Judgment of 15 March 2012, LawLex201200000622JBJ.

Case C-277/10 Luksan, Judgment of 9 February 2012, LawLex201200000697JBJ.

Case C-279/13 C More Entertainment AB v Linus Sandberg, Judgment of 26 March 2015, LawLex201500000430JBJ; national legislation may extend to a pay TV channel the exclusive right to broadcast sporting fixtures live on internet provided that such an extension does not undermine the protection of copyright guaranteed under EU law.

Cf. French law, where Article L. 122-2 CPI defines communication to the public by “any process whatsoever”, including direct representations.

Case C-527/15 Stichting Brein, Judgment of 26 April 2017, LawLex201700000752JBJ: the provision of a multimedia player which enables, in view of the add-ons pre-installed on it, access via structured menus to links which, when activated by the remote control of that multimedia player, offer its users direct access to protected works without the consent of the copyright holders, is an act of communication to the public.

Case C-275/15 ITV Broadcasting Limited and others, Judgment of 1 March 2017, LawLex201700000401JBJ.

Case C-275/15 ITV Broadcasting Limited and others, cited above.. 

Case C-263/18 Nederlands Uitgeversverbond, Groep Algemene Uitgevers v Tom Kabinet Internet BV and others, Judgment of 19 December 2019, LawLex202000001654JBJ.

Case C-306/05 SGAE [2006] ECR I-11519, LawLex200900002221JBJ.

European Business Law

261. Rights of communication and rights to make available

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Les notions juridiques connexes

261. Rights of communication and rights to make available

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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