Copyright, hotels and communication to the public – Advocate General’s opinion

hotel-icon-5The Advocate General of the European court M. SZPUNAR gave opinion regarding case C‑641/15 Verwertungsgesellschaft Rundfunk GmbH  against  Hettegger Hotel Edelweiss GmbH. The case concerns the following:

Hettegger Hotel Edelweiss GmbH (‘Hettegger Hotel Edelweiss’), the defendant in the main proceedings, is a company incorporated under Austrian law. It operates inter alia a hotel in the town of Grossarl (Austria). The rooms in that hotel are furnished with television sets which enable broadcasts from a variety of television broadcasters to be received by means of a communal aerial belonging to the hotel.

Verwertungsgesellschaft Rundfunk GmbH (‘Verwertungsgesellschaft Rundfunk’), the applicant in the main proceedings, is a collecting society for the management of copyright and related rights. It manages inter alia the rights of many national and foreign television organisations, including broadcasters, whose broadcasts can be received in the rooms of the hotel belonging to Hettegger Hotel Edelweiss.

Verwertungsgesellschaft Rundfunk considers that Hettegger Hotel Edelweiss, by enabling a television signal to be received in the rooms of the hotel which it operates, is communicating to the public in a place accessible to the public against payment of an entrance fee — within the meaning of the provisions transposing Article 8(3) of Directive 2006/115 — the broadcasts of television broadcasters whose interests that collecting society represents. In its view, the activity of Hettegger Hotel Edelweiss, consisting in the installation of television sets in hotel rooms and providing a television signal there, is consequently subject to the exclusive right of television broadcasters. Therefore, that company must pay the appropriate fees in return for consent for that activity.

In the light of the foregoing, Verwertungsgesellschaft Rundfunk brought before the referring court an action against Hettegger Hotel Edelweiss, claiming that it should order Hettegger Hotel Edelweiss to provide information on the number of rooms in the hotel which it operates and the number of television channels which can be received in them, and also to pay damages for the communication thereof to date.

Hettegger Hotel Edelweiss disputes the validity of the claim, arguing in particular that hotel rooms are not places accessible to the public against payment of an entrance fee within the meaning of the provisions transposing Article 8(3) of Directive 2006/115, and therefore communicating the broadcasts of television broadcasters in them is not subject to the exclusive right laid down in those provisions.

In those circumstances, the Handelsgericht Wien (Commercial Court, Vienna) decided to stay the proceedings and to refer the following question to the Court for a preliminary ruling:

‘Is the condition of “against [payment] of an entrance fee” laid down in Article 8(3) of Directive [2006/115] satisfied where;

–  through the TV set made available in each room of a hotel, the hotel operator provides access to the signal for various television and radio channels (“hotel room TV”), and

–   for use of the room (including hotel room TV), the hotel operator charges a fee per room per night (room rate) which also includes use of the TV set and the television and radio channels to which access is thereby provided?’

The Advocate General’s opinion is:

Article 8(3) of Directive 2006/115/EC of the European Parliament and of the Council of 12 December 2006 on rental right and lending right and on certain rights related to copyright in the field of intellectual property must be interpreted as meaning that the communication of a television or radio signal through television sets installed in hotel rooms does not constitute communication to the public of the broadcasts of broadcasting organisations in a place accessible to the public against payment of an entrance fee within the meaning of that provision.

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