CJEU, 1st chamber, June 20, 2024, No C-135/23

Judgment

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).

2 The request has been made in proceedings between, of the one part, Gesellschaft für musikalische Aufführungs- und mechanische Vervielfältigungsrechte eV (GEMA), a copyright-collecting society, and, of the other part, GL, the operator of an apartment building, concerning alleged infringements of copyright by GL, by reason of the fact that GL provides, in the apartments it manages, television sets with an indoor antenna enabling signals to be picked up and broadcasts to be made, in particular of music.

 Legal context

 International law

3 The World Intellectual Property Organization (WIPO) adopted the WIPO Copyright Treaty (‘the WCT’) in Geneva on 20 December 1996, a treaty which was approved on behalf of the European Community by Council Decision 2000/278/EC of 16 March 2000 (OJ 2000 L 89, p. 6) and which entered into force with respect to the European Union on 14 March 2010 (OJ 2010 L 32, p. 1).

4 Article 8 of the WCT, headed ‘Right of Communication to the Public’, provides:

‘Without prejudice to the provisions of Articles 11(1)(ii), 11bis(1)(i) and (ii), 11ter(1)(ii), 14(1)(ii) and 14bis(1) of the [Convention for the Protection of Literary and Artistic Works, signed in Berne on 9 September 1886 (Paris Act of 24 July 1971) as amended on 28 September 1979], authors of literary and artistic works shall enjoy the exclusive right of authorising 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 these works from a place and at a time individually chosen by them.’

5 Agreed Statements concerning the WCT were adopted by the WIPO Diplomatic Conference on 20 December 1996.

6 The Agreed Statement concerning Article 8 of the WCT is worded as follows:

‘It is understood that the mere provision of physical facilities for enabling or making a communication does not in itself amount to communication within the meaning of this Treaty or the [Convention for the Protection of Literary and Artistic Works, as amended on 28 September 1979].

 European Union law

7 Recitals 4, 9, 10, 23 and 27 of Directive 2001/29 state:

‘(4) A harmonised legal framework on copyright and related rights, through increased legal certainty and while providing for a high level of protection of intellectual property, will foster substantial investment in creativity and innovation … and lead in turn to growth and increased competitiveness of European industry …

(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.

(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.

(27) The mere provision of physical facilities for enabling or making a communication does not in itself amount to communication within the meaning of this Directive.’

8 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.’

 German law

9 Paragraph 15 of the Gesetz über Urheberrecht und verwandte Schutzrechte – Urheberrechtsgesetz (Law on copyright and related rights) of 9 September 1965 (BGBl. 1965 I, p. 1273), in the version applicable to the facts in the main proceedings, provides:

(2) The author has the exclusive right to communicate his or her 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 (Paragraph 19),

2. the right to make work available to the public (Paragraph 19a),

3. the right to broadcast (Paragraph 20),

4. the right of communication by video or audio recordings (Paragraph 21),

5. the right to communicate broadcasts and works made available to the public (Paragraph 22).

(3) The communication of a work is deemed public if it is intended for a plurality of members of the public. Anyone who is not connected by a personal relationship with the person exploiting the work or with the other persons to whom the work is made perceivable or made available in an intangible form is deemed to be a member of the public.’

 The dispute in the main proceedings and the question referred for a preliminary ruling

10 GEMA, a collective management organisation that handles music copyright, brought a claim for damages under copyright law before the Amtsgericht Potsdam (Local Court, Potsdam, Germany), which is the referring court, against GL, the operator of a building comprising 18 apartments, on the ground that GL provides, in those apartments, television sets equipped with an indoor antenna enabling signals to be picked up and broadcasts to be made in those apartments, in particular of music, contrary to Paragraph 15 of the Law on copyright and related rights, in the version applicable to the facts in the main proceedings.

11 That court harbours doubts as to whether such provision constitutes a ‘communication to the public’, within the meaning of Article 3(1) of Directive 2001/29, as regards, in particular, the fact that the building at issue is not equipped with a ‘central antenna’ enabling signals to be distributed to those apartments.

12 It submits, in that respect, that, in its judgment of 7 December 2006, SGAE (C 306/05, EU:C:2006:764), the Court held that, while the mere provision of physical facilities does not as such amount to a ‘communication to the public’, within the meaning of Article 3(1) of that directive, the distribution of a signal by means of television sets by a hotel to guests staying in its rooms, whatever technique is used to transmit the signal, constitutes such a communication. In its order of 18 March 2010, Organismos Sillogikis Diacheirisis Dimiourgon Theatrikon kai Optikoakoustikon Ergon (C 136/09, EU:C:2010:151), the Court concluded that a hotel carries out an act of ‘communication to the public’, within the meaning of that provision, when it installs television sets in its rooms and connects them to a ‘central antenna’ of that hotel, which makes those television sets capable of receiving broadcasts. By contrast, it is apparent from the judgment of 2 April 2020, Stim and SAMI (C 753/18, EU:C:2020:268), that the provision of radio receivers in hire cars does not amount to such a communication to the public.

13 The referring court maintains that that case-law does not make it possible to answer with certainty the question whether the provision, by the operator of an apartment building, of television sets equipped with an indoor antenna enabling signals to be picked up and broadcasts to be made in those apartments, without a ‘central antenna’, constitutes a ‘communication to the public’, within the meaning of Article 3(1) of Directive 2001/29.

14 In those circumstances, the Amtsgericht Potsdam (Local Court, Potsdam) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

‘Is there a communication to the public within the meaning of Article 3 of Directive [2001/29] when the operator of an apartment building provides televisions in that apartment building which each receive broadcasts via an indoor antenna without a central reception for transmitting the signals?’

 Consideration of the question referred

15 By its question, the referring court asks, in essence, whether Article 3(1) of Directive 2001/29 must be interpreted as meaning that the concept of ‘communication to the public’, referred to in that provision, covers the provision, by the operator of a rented apartment building, of television sets equipped with an indoor antenna that, without further intervention, pick up signals and enable broadcasts to be made.

16 It must be borne in mind 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.

17 As the Court has repeatedly held, under that provision, authors thus have a right which is preventive in nature and which enables 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 communication (judgments of 31 May 2016, Reha Training, C 117/15, EU:C:2016:379, paragraph 30, and of 20 April 2023, Blue Air Aviation, C 775/21 and C 826/21, EU:C:2023:307, paragraph 44 and the case-law cited).

18 As Article 3(1) of Directive 2001/29 does not define the concept of ‘communication to the public’, the meaning and scope of that concept must be determined in the light of the objectives pursued by that directive and the context in which the provision being interpreted is set (judgment of 20 April 2023, Blue Air Aviation, C 775/21 and C 826/21, EU:C:2023:307, paragraph 45 and the case-law cited).

19 As regards those objectives, the Court has consistently held that the concept of ‘communication to the public’, within the meaning of Article 3(1) of Directive 2001/29, should, as is underlined by recital 23 of that directive, be understood in a broad sense, covering all communication to the public not present at the place where the communication originates and, thus, any such transmission or retransmission of a work to the public by wire or wireless means, including broadcasting. It is, indeed, clear from recitals 4, 9 and 10 of that directive that the principal objective of the directive is to establish a high level of protection of authors, allowing them to obtain an appropriate reward for the use of their work, including when a communication to the public takes place (judgment of 20 April 2023, Blue Air Aviation, C 775/21 and C 826/21, EU:C:2023:307, paragraph 46 and the case-law cited).

20 As regard the context of which the provision at issue forms part, it is apparent from recital 27 of Directive 2001/29, which reproduces, in essence, the Agreed Statement concerning Article 8 of the WCT, that ‘the mere provision of physical facilities for enabling or making a communication does not in itself amount to communication within the meaning of this Directive’ (see, to that effect, judgment of 2 April 2020, Stim and SAMI, C 753/18, EU:C:2020:268, paragraph 33).

21 In accordance with settled case-law, the concept of ‘communication to the public’, within the meaning of Article 3(1), includes two cumulative criteria, namely an act of communication of a work and the communication of that work to a public, and requires an individual assessment (judgments of 31 May 2016, Reha Training, C 117/15, EU:C:2016:379, paragraph 37, and of 20 April 2023, Blue Air Aviation, C 775/21 and C 826/21, EU:C:2023:307, paragraph 47 and the case-law cited).

22 For the purposes of such an assessment, 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 (judgments of 31 May 2016, Reha Training, C 117/15, EU:C:2016:379, paragraph 35, and of 20 April 2023, Blue Air Aviation, C 775/21 and C 826/21, EU:C:2023:307, paragraph 48 and the case-law cited).

23 Among those criteria, the Court has emphasised the indispensable role played by the user and the deliberate nature of his or her intervention. That user makes an ‘act of communication’ when he or she intervenes, in full knowledge of the consequences of his or her action, to give his or her customers access to a protected work, particularly where, in the absence of that intervention, those customers would not, in principle, be able to enjoy the broadcast work (judgments of 31 May 2016, Reha Training, C 117/15, EU:C:2016:379, paragraph 46, and of 20 April 2023, Blue Air Aviation, C 775/21 and C 826/21, EU:C:2023:307, paragraph 49 and the case-law cited).

24 Furthermore, the Court has held that it is relevant that a communication to the public, within the meaning of Article 3(1) of Directive 2001/29, is of a profit-making nature, even though that nature is not necessarily an essential condition for the existence of such a communication (see, to that effect, judgment of 20 April 2023, Blue Air Aviation, C 775/21 and C 826/21, EU:C:2023:307, paragraph 50 and the case-law cited).

25 In that respect, the Court has held that the ‘receptivity’ of the public may be relevant, in that the broadcast of protected works is of a profit-making nature where the user is likely to obtain an economic benefit related to the attractiveness of and, therefore, the increased occupancy of the establishment in which it makes those broadcasts, whereas such a profit-making nature is lacking where the public concerned does not give any importance to such a broadcast (see, to that effect, judgment of 31 May 2016, Reha Training, C 117/15, EU:C:2016:379, paragraphs 50 to 52).

26 Thus, it follows from the case-law of the Court that it is, in particular, the indispensable role of the user in order to give his or her customers access to protected works and the deliberate nature of his or her intervention, in particular if that intervention is of a profit-making nature, which makes it possible to distinguish, for the purposes of applying Article 3(1) of Directive 2001/29, between, on the one hand, the ‘communication to the public’, within the meaning of that provision, and, on the other hand, the ‘mere provision of physical facilities’, within the meaning of recital 27 of that directive.

27 In the light of those principles, which follow from settled case-law, the Court has held that the supply of (i) a radio receiver forming an integral part of a hired motor vehicle, which makes it possible to receive, without any additional intervention by the leasing company, the terrestrial radio broadcasts available in the area in which the vehicle is located, (ii) sound equipment and, where appropriate, (iii) software enabling the broadcast of background music do not amount to ‘acts of communication’. According to the case-law of the Court, an act such as those constitutes a ‘provision of physical facilities’ within the meaning of recital 27 of Directive 2001/29 (see, to that effect, judgments of 2 April 2020, Stim and SAMI, C 753/18, EU:C:2020:268, paragraph 34, and of 20 April 2023, Blue Air Aviation, C 775/21 and C 826/21, EU:C:2023:307, paragraph 69).

28 To that end, the Court has noted in particular that if the mere fact that the use of equipment is necessary in order for the public to be able actually to enjoy the work automatically resulted in the intervention of the person responsible for that provision being classified as an act of ‘communication to the public’, any ‘provision of physical facilities for enabling or making a communication’ would constitute such an act, which is what recital 27 of Directive 2001/29 – which reproduces, in essence, the Agreed Statement concerning Article 8 of the WCT – expressly precludes (see, to that effect, judgment of 20 April 2023, Blue Air Aviation, C 775/21 and C 826/21, EU:C:2023:307, paragraph 68 and the case-law cited).

29 By contrast, the Court has held, as regards the operators of a public house, a hotel, a spa establishment and a rehabilitation centre, that they perform an act of communication when they deliberately transmit protected works to their clientele, by intentionally distributing a signal through television or radio sets which they have installed in their establishment (see, inter alia, judgments of 7 December 2006, SGAE, C 306/05, EU:C:2006:764, paragraph 46; of 4 October 2011, Football Association Premier League and Others, C 403/08 and C 429/08, EU:C:2011:631, paragraph 196; of 27 February 2014, OSA, C 351/12, EU:C:2014:110, paragraph 26; and of 31 May 2016, Reha Training, C 117/15, EU:C:2016:379, paragraphs 55 and 56).

30 In that case-law, the Court held, in essence, that if an establishment operator voluntarily provides its customers with television or radio signals and sets which enable the broadcast of programmes encoded in those signals and which are installed in several places in that establishment, they are acts of ‘communication to the public’, within the meaning of Article 3(1) of Directive 2001/29, irrespective of the technique used to transmit the signal.

31 In the present case, it is apparent from the request for a preliminary ruling that the operator of the apartment building at issue in the main proceedings provides to the tenants of those apartments television sets equipped with an indoor antenna, which it is established pick up signals and enable broadcasts, in particular of music, to be made in those apartments.

32 Although it is for the national court to determine, in the light of the considerations set out in paragraphs 19 to 30 above, whether a building operator such as that at issue in the main proceedings carries out an act of ‘communication to the public’, within the meaning of Article 3(1) of Directive 2001/29 (see, to that effect, judgment of 15 March 2012, Phonographic Performance (Ireland), C 162/10, EU:C:2012:141, paragraph 39), it is appropriate for the Court to provide some useful indications in that regard to enable the referring court to decide the case before it (see, to that effect, judgment of 5 May 2022, BV, C 570/20, EU:C:2022:348, paragraph 44).

33 In that regard, in the first place, it must be held, as the Advocate General did in points 40 and 50 of his Opinion, and subject to verification by the referring court, that the operator of an apartment building, by installing in those apartments television sets and indoor antennae that, without further intervention, pick up signals and enable broadcasts to be made, in particular of music, in those apartments, deliberately makes an intervention in order to give its clientele access to those broadcasts, within rented apartments and during the rental period, irrespective of whether the latter avails itself of that opportunity (see, to that effect, judgment of 14 June 2017, Stichting Brein, C 610/15, EU:C:2017:456, paragraph 31 and the case-law cited).

34 In addition, the intervention of that operator giving access to broadcast works to its clientele must be considered an additional service performed with the aim of obtaining some benefit.

35 The provision of that service has an influence on the prestige of the apartments in question and, therefore, on the price of rent for those apartments (see, to that effect, judgment of 15 March 2012, SCF, C 135/10, EU:C:2012:140, paragraph 90 and the case-law cited) or, as has been noted in paragraph 25 above, on their attractiveness and, therefore, on their occupancy. It must therefore be held that the provision of such a service makes it possible to establish that the communication, within the meaning of the case-law cited in paragraphs 24 and 25 above, is of a profit-making nature.

36 For the purposes of the examination to be carried out by the referring court, the fact, emphasised by that court, that the television sets at issue in the main proceedings are connected to an ‘indoor’ antenna rather than a ‘central’ antenna, such as that at issue in the case that gave rise to the order of 18 March 2010, Organismos Sillogikis Diacheirisis Dimiourgon Theatrikon kai Optikoakoustikon Ergon (C 136/09, EU:C:2010:151), is irrelevant.

37 Such a distinction between central and indoor antennae is not consistent with the principle of technological neutrality, according to which the law must specify the rights and obligations of persons in a generic manner, so as not to favour the use of one technology to the detriment of another (see, to that effect, judgment of 24 March 2022, Austro-Mechana, C 433/20, EU:C:2022:217, paragraph 27 and the case-law cited).

38 In the second place, in order to be categorised as a ‘communication to the public’, within the meaning of Article 3(1) of Directive 2001/29, the protected works must also in fact be communicated to a public. In that regard, the Court has stated that the concept of ‘public’ refers to an indeterminate number of potential recipients and implies, moreover, a fairly large number of people (judgment of 20 April 2023, Blue Air Aviation, C 775/21 and C 826/21, EU:C:2023:307, paragraphs 51 and 52 and the case-law cited).

39 Thus, the concept of ‘public’ involves a certain de minimis threshold, which excludes from that concept a group of persons concerned that is too small, or insignificant. In order to determine that number, account should be taken, in particular, of the number of persons able to access the work at the same time, but also of how many of them may access it in succession (see, to that effect, judgments of 31 May 2016, Reha Training, C 117/15, EU:C:2016:379, paragraphs 43 and 44, and of 19 December 2019, Nederlands Uitgeversverbond and Groep Algemene Uitgevers, C 263/18, EU:C:2019:1111, paragraph 68 and the case-law cited).

40 In the present case, the referring court does not provide any indication as to the number of persons who may have access to the works, at the same time or successively, other than to say that the building at issue in the main proceedings contains 18 apartments. That court does not state, in particular, whether those apartments are let on a short-term basis, in particular as tourist accommodation, which is likely to have an effect on the number of persons who may successively have access to the works in question.

41 In accordance with the case-law cited in paragraph 32 above, it is, respectively, for the national court to determine whether the protected works are actually communicated to a ‘public’, within the meaning of the case-law cited in paragraphs 38 and 39 above, and for the Court to provide it with some useful indications in that regard.

42 As the Advocate General observed in point 36 of his Opinion, if the referring court were to find that the apartments in the building at issue in the main proceedings are let on a short-term basis, in particular as tourist accommodation, their tenants should be classified as a ‘public’, since together they constitute, like guests in a hotel, an indeterminate number of potential recipients (see, to that effect, judgment of 15 March 2012, Phonographic Performance (Ireland), C 162/10, EU:C:2012:141, paragraphs 41 to 42).

43 In the third place, it follows from settled case-law that, in order to be categorised as a ‘communication to the public’, within the meaning of Article 3(1) of Directive 2001/29, a protected work must be communicated using specific technical means, different from those previously used or, failing that, to a ‘new public’, that is to say, to a public that was not already taken into account by the copyright holder when it authorised the initial communication of its work to the public (judgment of 22 June 2021, YouTube and Cyando, C 682/18 and C 683/18, EU:C:2021:503, paragraph 70 and the case-law cited).

44 As the Advocate General emphasised in point 59 of his Opinion, tenants of apartments in a building that are let on a short-term basis, in particular as tourist accommodation, are capable of constituting such a ‘new’ public, since those persons, although within the catchment area of that broadcast, could not, without the intervention of the operator of that building, involving the installation of television sets equipped with indoor antennae in those apartments, enjoy the broadcast works (see, to that effect, judgment of 31 May 2016, Reha Training, C 117/15, EU:C:2016:379, paragraphs 46 and 47).

45 By contrast, as the Advocate General observed in point 60 of his Opinion, if the referring court were to find that the apartments in question in the main proceedings are let to tenants who establish their residence there, those tenants cannot be regarded as a ‘new public’, within the meaning of the case-law cited in paragraph 43 above.

46 In the light of the foregoing considerations, the answer to the question referred for a preliminary ruling is that Article 3(1) of Directive 2001/29 must be interpreted as meaning that the concept of ‘communication to the public’, referred to in that provision, covers the deliberate provision, by the operator of a rented apartment building, of television sets equipped with an indoor antenna that, without further intervention, pick up signals and enable broadcasts to be made, provided that the tenants of those apartments can be regarded as a ‘new public’.

 Costs

47 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring 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.

On those grounds, the Court (First Chamber) hereby rules:

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

must be interpreted as meaning that the concept of ‘communication to the public’, referred to in that provision, covers the deliberate provision, by the operator of a rented apartment building, of television sets equipped with an indoor antenna that, without further intervention, pick up signals and enable broadcasts to be made, provided that the tenants of those apartments can be regarded as a ‘new public’.