[Guest post] CJEU: New licensing rules for the provision of guest TVs in Germany?

The IPKat has received and is pleased to host the following contribution by former GuestKat Mirko Brüß (Brüß Law) analyzing two recent decisions of the Court of Justice of the European Union (CJEU) on the evergreen right of communication to the public. Here’s what he writes:

CJEU: New licensing rules for the provision of guest TVs in Germany?

by Mirko Brüß

In two recent decisions, the CJEU has once again addressed the issue of communication to the public by means of the provision of television receivers in hotels and similar public facilities.

Both decisions are based on questions referred by German courts and call into question the established German case law in that area and the known general licensing practice of the collective management societies based on it. Collective management societies, hotel operators and similar establishments may have to review their existing license agreements and will certainly keep an eye on the outcome of the proceedings before the referring courts.

Citadines ./. MPLC [C-723/22]

The first referral (case C-723/22, commented by The IPKat here) was made by the Higher Regional Court of Munich (OLG Munich) in the proceedings between Citadines Betriebs GmbH (Citadines), the operator of a hotel, and MPLC Deutschland GmbH (MPLC), an independent collecting society.

The proceedings concern an alleged infringement by Citadines of the exclusive right of communication to the public that MPLC holds over an episode of a television series broadcast on a public television channel, which the guests of that hotel were able to view on television sets provided by Citadines in the rooms and the fitness area.

The dispute and the question referred to the CJEU are mainly based on the fact that the concept of “communication to the public” within the meaning of Article 3(1) of Directive 2001/29/EC is divided into several rights in German law, that can all be licensed separately.

Of relevance here are, in particular, the right under section 20b (‘retransmission’) of the German Copyright Act (“UrhG”) and the right under section 22 of the UrhG (‘Right of communication of broadcasts and of works made available to public’).

Kat enjoying TV
... thankfully installed by someone else

In general, a “right of communication to the public” within the meaning of Art. 3 (1) of Directive 2001/29/EC can also be implemented into German Law as an “unnamed right of communication to the public” (within the meaning of section 15 (2) UrhG, cf. FCJ, case no. I ZR 21/14 - Königshof). Ultimately, it is disputed which of these rights is specifically affected in such a case and has to be licensed accordingly.

Citadines argued that it is entitled to make available to its guests free-to-air programmes broadcast on public-service television, via the television sets installed in the rooms and fitness area of the hotel concerned, on the basis of “licences for cable retransmission” (within the meaning of section 20b UrhG and acquired from German collective societies like GEMA et al.).

By contrast, MPLC argued that, by [providing TV sets and] retransmitting the signal at issue by means of a cable distribution network belonging to the hotel, Citadines infringed MPLC’s right of communication to the public (within the meaning of Sections 15 (2), 22 UrhG) and that it is irrelevant in that regard that Citadines had obtained a licence for the “right of cable retransmission” (within the meaning of section 20b UrhG).

Unfortunately ,the CJEU’s ruling from April 11th does not really clarify the situation. In fact, it only confirms what was already known from previous decisions in this area (C-306/05 SGAE ./. Rafael Hoteles, commented by The IPKat here; C-117/15 Reha Training et al., commented by The IPKat here):

The provision of television sets installed in the rooms or in the fitness area of a hotel, where a signal is also retransmitted to those sets installed in the rooms or in the fitness area of a hotel, where a signal is also retransmitted to those sets by means of that hotel´s own cable distribution network, constitutes a “communication to the public” within the meaning of Article 3(1) of Directive 2001/29/EC (C-723/22, para. 55).

In its considerations, however, the CJEU takes a deeper look at the background of the question referred and provides some more guidance to the national court.

The CJEU notes that the referring court clearly stated, that section 20b UrhG is a transposition of Directive 93/83 and therefore reminds the national court how to define the concept of “cable retransmission” within the meaning of that Directive (which lies in the jurisdiction of the CJEU).

In particular the CJEU refers to its fundamental decision in C-716/20 RTL Television ./. Pestana, where it already held that Directive 93/83 only governs the exercise of the cable retransmission right in the relationship between copyright owners and holders of related rights, on the one hand, and ‘cable operators’ or ‘cable distributors’, on the other, and that these concepts designate the operators of traditional cable networks. A hotel cannot be regarded as a ‘cable operator’ within the meaning of Directive 93/83, the CJEU held.

Insofar as section 20b UrhG actually represents a mere implementation of the Directive 93/83 into German Law (which is a matter for the national court to decide), this means that a license for cable retransmission within the meaning of section 20b UrhG and Directive 93/83 does not cover the provision of television sets in hotel rooms and similar uses.

This could have an impact on the entire German licensing market, as The IPKat predicted in the comment on the referral. The German licensing market has so far largely assumed that such activities of a hotel constitute a “cable retransmission” within the meaning of section 20b UrhG. This is, however, primarily based on the interpretation of the case law of the German Federal Court of Justice, which was issued long before the CJEU decision in RTL Television / Pestana (C-716/20).

Nevertheless, the final decision remains with the (referring) national court.

As clarified by the CJEU, it falls within the exclusive jurisdiction of the national courts to rule on the interpretation of national provisions; and thus, on the question whether the provisions of section 20b of the UrhG constitute a transposition of Directive 93/83 or Directive 2001/29. Also, the CJEU notes, that the reference does not contain any details on the type of acts covered by the licensing agreement held by Citadines, besides authorizing “retransmission”, and that it is for the national court to determine the facts, whether the licensing agreement actually covers the acts of communication to the public that have been performed by Citadines here.

GEMA ./. GL [C-135/23]

The second referral (C-135/23) was made by the Lower Regional Court of Potsdam (AG Potsdam) in proceedings between GEMA, a collective management organisation that handles music copyright, and GL, the operator of an apartment building.

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.

AG Szpunar had doubts as to whether such provision constitutes a ‘communication to the public’, because the television sets were not connected to a ‘central’ antenna, such as the television sets at issue in the case C-136/09 – OSDDT, though in the end he advised the CJEU to rule that such an activity would amount to communication to the public [see IPKat here].

In so doing, however, the CJEU considered a distinction between central and indoor antennae irrelevant, because it is not consistent with the principle of technological neutrality. The CJEU ruled on June 20th, that the concept of ‘communication to the public’, referred to in Article 3 (1) of Directive 2001/29, [also] “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’”.

The CJEU also provided some useful indications to help the referring court to determine, whether there also is a “new public” within the meaning of the CJEU case-law.

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. Tenants of apartments in a building that are let on a short-term basis, in particular as tourist accommodation, are also capable of constituting 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.

By contrast, 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 relevant CJEU case-law.

This latest decision by the CJEU is also capable of having an impact at least on the German licensing market. Because - despite the already known OSDDT decision (C-136/09) - the German courts, including the Federal Court of Justice, have not yet recognized that the provision of television sets with an indoor antenna in hotels and similar establishments also constitute a communication to the public (FCJ, case no. I ZR 21/14 – Königshof and case no. I ZR 127/17). Accordingly, a (non-)licensing practice has developed for indoor antennas that contradicts the now reconfirmed requirements of EU law.

It will be interesting to observe how the German licensing market reacts to the CJEU’s decisions and the subsequent local rulings.