Copyright cases for the CJEU: have your say

Following Tuesday's post, here's a couple more recent Court of Justice of the European Union (CJEU) copyright cases that are the subject of an invitation to comment, issued by the UK Intellectual Property Office as a means of evaluating whether the UK government should make observations to the court. In practice the UK government doesn't seem to intervene that much in intellectual property cases. What's more, the public are never told (i) what submissions have been made, (ii) who has made them, (iii) what they contain or (iv) how if at all they are acted upon [Merpel wonders, does anyone know?]. However, it's always pleasant to be asked for one's opinion.

The first in this recent brace of references is Case C-117/15 Reha Training Gesellschaft für Sport- und Unfallrehabilitation mbH v Gesellschaft für musikalische Aufführungs- und mechanische Vervielfältigungsrechte (GEMA), a request for a preliminary ruling from the Landgericht Köln (Germany) in a case that involves a rehabilitation facility. This establishment has a number of TV screens showing various TV programmes in recreation and training rooms: these screens, and presumably the programmes shown on them, can be watched by people making use of those rooms. In the underlying action Reha Training is seeking to resist the collecting societies claim for royalties on the basis that the availability of the TV screens constitutes a “communication to the public”. The questions referred for a preliminary ruling read as follows:

Is the question as to whether there is a ‘communication to the public’ within the meaning of Article 3(1) of Directive 2001/29 [on the harmonisation of certain aspects of copyright and related rights in the information society: the InfoSoc Directive] and/or within the meaning of Article 8(2) of Directive 2006/115 [on rental right and lending right and on certain rights related to copyright in the field of intellectual property] always to be determined in accordance with the same criteria, namely that

(a) 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,

(b) 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;

(c) 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

(d) it is not irrelevant [Merpel would happily ban all double negatives: why can't the court say "relevant" -- or does "not irrelevant" mean something quite different?] 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?

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?

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?

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, EU:C:2012:140 [the much-debated "dentists' waiting room" case, noted by the IPKat here]) or similar establishments?

Readers may be getting a slight sense of déjà vu at this point, recalling that another CJEU reference, Case C-351/12 Ochranný svaz autorský pro práva k dílům hudebním, os (OSA) v Léčebné lázně Mariánské Lázně as [noted by Eleonora for the IPKat here], dealt with a similar set of facts involving a health spa.

If you would like to advise the UK Intellectual Property Office of your opinion, which might just precipitate a British submission in these proceedings, just email policy@ipo.gov.uk by 12 June 2015. You don't have to British to offer your thoughts -- and it probably doesn't even help if you are.

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The second is Case C-160/15 GS Media, this being a reference from the Hoge Raad der Nederlanden, The Netherlands to which the IPKat has already alluded here and here. To recap (this being the UK IPO's summary): GS Media is a company which runs a website which allegedly infringed copyright in relation to photographs taken for a feature by publishing a hyperlink on its website that allowed the public to access those photos on an external, third party hosted site which also did not have consent to publish the photos in question. The questions asked here are these:

1(a) If anyone other than the copyright holder refers by means of a hyperlink on a website controlled by him to a website which is managed by a third party and is accessible to the general internet public, on which the work has been made available without the consent of the rightholder, does that constitute a ‘communication to the public’ within the meaning of Article 3(1) of Directive 2001/29? 

(b) Does it make any difference if the work was also not previously communicated, with the rightholder’s consent, to the public in some other way? 

(c) Is it important whether the ‘hyperlinker’ is or ought to be aware of the lack of consent by the rightholder for the placement of the work on the third party’s website mentioned in 1(a) above and, as the case may be, of the fact that the work has also not previously been communicated, with the rightholder’s consent, to the public in some other way? 

2(a) If the answer to question 1(a) is in the negative: in that case, is there, or could there be deemed to be, a communication to the public if the website to which the hyperlink refers, and thus the work, is indeed findable for the general internet public, but not easily so, with the result that the publication of the hyperlink greatly facilitates the finding of the work?

(b) In answering question 2(a), is it important whether the ‘hyperlinker’ is or ought to be aware of the fact that the website to which the hyperlink refers is not easily findable by the general internet public?

3. Are there other circumstances which should be taken into account when answering the question whether there is deemed to be a communication to the public if, by means of a hyperlink, access is provided to a work which has not previously been communicated to the public with the consent of the rightholder?

Again, if you would like to advise the UK Intellectual Property Office of your opinion, which might just precipitate a British submission in these proceedings, just email policy@ipo.gov.uk by 12 June 2015.