Copyright fees are due for the communication by television or radio of protected music within the premises of spa establishme…

The ECJ delivered on the 27th of February 2014 a new decision by which it made the application of the concept of "communication to the public" referred to by the EU Copyright Directive.

At the outset, it should be recalled that said Directive imposes to Member states an obligation to ensure that copyright holders enjoy exclusive rights to authorize the reproduction, distribution and the "communication to the public" of their works.

The dispute in the main proceedings was between OSA, the Czech copyright collecting society, and a Czech spa company. The last installed radio and television sets in the bedrooms of its establishment in order to make music available to its guests but it did not enter into a license agreement with OSA and refused to pay copyright fees on the basis that under the Czech legislation the health establishments are exempt from the payment of copyright fees.

Within this context, the ECJ has been asked to clarify whether the Czech legislation is compatible with the EU Copyright Directive.

To answer to this question, the ECJ made, in the light of its settled case-law, an in-depth analysis and an application to the case at hand of the concept of "communication to the public".

Regarding the concept of "communication" the Court made reference to the Phonographic Performance decision (C-162/10) to recall on the intentional character of the communication. The Court concluded for the case at hand that the operator of the spa establishment carries out a communication when it deliberately transmits protected works, by intentionally distributing a signal through television or radio sets in the rooms of the patients.

In relation to the concept of "public" the Court made reference to the ITV Broadcast decision (C-607/11) to recall that the term refers to an indeterminate number of potential recipients and implies, moreover, a fairly large number of persons.

In contrast with the SCF decision (C-135/10) where the Court found that the patients of a dentist constitute a determinate circle of potential recipients which is, in addition, insignificant, in the case at hand the Court arrived to a different conclusion. For the Court, a spa establishment is likely to accommodate, both at the same time and successively, an indeterminate but fairly large number of people who can receive broadcast in their rooms.

Having regard to the above, the Court concluded that the transmission by the spa establishment of copyrighted music by means of television and radio sets located in the bedrooms of its guests must to be considered as communication to the public of protected works for which the authors of such works are entitled to adequate compensation. The Court confirmed that the EU copyright directive does not make provision for any exemption in this regard in relation to spas. Therefore, the exemption provided for in the Czech law is not compatible with the EU law.