|Copyright + Spa = The perfect getaway|
As the IPKat reported back in November, the background to the case was as follows.
Radio and TV sets in the bedrooms of a residential health spa establishment in the Czech Republic gave access to broadcast works.
Under Directive 2001/29 (the 'InfoSoc Directive), holders of copyright in such works have the exclusive right to authorise their communication to the public pursuant to Article 3(1) of this directive and may claim fees for doing so.
OSA, a copyright collecting society with exclusive rights to enter into licence agreements and collect fees on behalf of authors of musical works in the Czech Republic, claimed fees for such communication to the public by the establishment in question.
The spa claimed that it did own no fees, since its activities were covered by the relevant exception as per Paragraph 23 of the Czech Copyright Law, which so states [or rather stated ...]:
"[O]peration of the radio or television transmission of a work’ means making a work transmitted by radio or television available by means of devices technically suitable for receiving a radio or television transmission. However, it does not include making a work available to patients when providing health care in health establishments." [it should be noted that Article 5(2)(e) of the InfoSoc Directive allows Members States to provide solely for an exception to the right of reproduction in favour of social institutions pursuing non commercial purposes, not also to the right of communication/making available to the public].
|Frustrated at several failed attempts|
to pronounce the word 'Plzeň'
The following were the questions referred to the CJEU:
- Must 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 be interpreted as meaning that an exception disallowing remuneration to authors for the communication of their work by television or radio transmission by means of television or radio receivers to patients in rooms in a spa establishment which is a business is contrary to Articles 3 and 5 (Article 5(2)(e), (3)(b) and (5))?
- Is the content of those provisions of the directive concerning the above use of a work unconditional enough and sufficiently precise for copyright collecting societies to be able to rely on them before the national courts in a dispute between individuals, if the State has not transposed the directive correctly in national law?
- Must Article 56 et seq. and Article 102 of the Treaty on the Functioning of the European Union (or as the case may be Article 16 of Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market ) be interpreted as precluding the application of rules of national law which reserve the exercise of collective management of copyright in the territory of the State to only a single (monopoly) copyright collecting society and thereby do not allow recipients of services a free choice of a collecting society from another State of the European Union?
According to the relevant press release, the Court ruled as follows:
|Kat-monopoly is fine and fun|
- By transmitting protected works by means of television and radio sets located in the bedrooms of its guests, a spa carries out a communication to the public of those works. Such a communication must be authorised by the authors [Merpel would say - more correctly - copyright holders], who must, in principle, receive adequate compensation. The InfoSoc Directive does not exempt a spa from the payment of fees where it transmits protected works to its guests. Consequently, the exception laid down by the Czech legislation does not comply with the directive [what is the legal consequence? The judgment does not say clearly, although - following the Opinion of AG Sharpston - this may be judicial disapplication of contrasting national provisions. For the sake of self-promotion, it is noted that this Kat discussed this very point here].
- The territorial monopoly granted to OSA constitutes a restriction on the freedom to provide services inasmuch as it does not allow users of protected works to choose the services of a collecting society established in another Member State. However, the restriction in question is justified, since that system is appropriate and necessary for attaining the objective of the effective management of intellectual property rights. As EU law stands at present, there is no other method allowing the same level of copyright protection. Hence, the monopoly granted by the Czech legislation to OSA is compatible with the freedom to provide services.