Tuesday, 25 October 2016

AG Szpunar says that the notion of "places accessible to the public against payment of an entrance fee" does not apply to hotel rooms

AG Szpunar
Under the Rental and Lending Rights Directive, among other things, broadcasting organisations have the exclusive right to authorise or prohibit the communication to the public of their broadcasts in places accessible to the public against payment of an entrance fee. 

More specifically, Article 8(3) of that directive provides that:

"Member States shall provide for broadcasting organisations the exclusive right to authorise or prohibit the rebroadcasting of their broadcasts by wireless means, as well as the communication to the public of their broadcasts if such communication is made in places accessible to the public against payment of an entrance fee."

Are hotel rooms included in the notion of "places accessible to the public against payment of an entrance fee"?

This is the issue on which the Handelsgericht Wien (Commercial Court, Vienna) is seeking guidance from the Court of Justice of the European Union (CJEU) in Verwertungsgesellschaft Rundfunk GmbH v Hettegger Hotel Edelweiss GmbH, C-641/15.

This morning Advocate General (AG) Szpunar in his Opinion answered the question in the negative, holding 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."

Background

This reference for a preliminary ruling has been made in the context of litigation between the operator of a hotel in Grossarl [whose rooms, unsurprisingly, are furnished with TV sets which enable broadcasts from a variety of broadcasters to be received by means of a communal aerial belonging to the hotel] and an Austrian collecting society, over the former's refusal to pay relevant fees pursuant to the national implementation of Article 8(3) of the Rental and Lending Rights Directive.

According to the hotel operator, 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 the Rental and Lending Rights Directive. 

The Commercial Court, Vienna, was not sure about the correct interpretation of Article 8(3) of that directive, and so asked the CJEU the following:

"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?"
Hotel life: not all about TV
The AG Opinion

In order to address the question referred by the Austrian court, AG Szpunar addressed in turn the notions of 'communication to the public' and ‘places accessible to the public against payment of an entrance fee’. 

While holding the view that the provision of a TV or radio signal by means of TV sets installed in hotel rooms must be regarded as falling within the notion of ‘communication to the public’, the AG concluded for the inapplicability of Article 8(3) of the Rental and Lending Rights Directive to the case at hand.

The notion of 'communication to the public'

The AG noted that the CJEU has already ruled that installing TV sets in hotel rooms and providing a television signal via them constitutes communication to the public within the meaning of both Article 3(1) of the InfoSoc Directive [Rafael Hoteles] and Article 8(2) of the Rental and Lending Rights Directive [PPI (Ireland), noted here].

However the object and scope of protection laid down in those provisions is different from that in Article 8(3) of the Rental and Lending Rights Directive. In particular, for a broadcast to exist it requires an airing and thus a form of communication to the public. Therefore, unlike in the case of works or performances or recordings thereof, communication to the public is not only one of the forms of using broadcasts but also an inherent element of the actual object of protection [para 15].

Despite the particular nature of radio and TV broadcasts, the AG rejected the idea [para 16] that the term 'communication to the public' in the context of providing a signal for TV sets installed in hotel rooms should be given a different meaning. He thus concluded the provision of a TV or radio signal by means of TV sets installed in hotel rooms must be regarded as communication to the public of broadcasts from broadcasting organisations within the meaning of Article 8(3) of the Rental and Lending Rights Directive.

This said, he noted however [para 17] that "the EU legislature limited the exclusive right of broadcasting organisations to cases of communication to the public in places accessible to the public against payment of an entrance fee."

The notion of ‘places accessible to the public against payment of an entrance fee’

Turning to the consideration whether hotel rooms are to be regarded as ‘places accessible to the public against payment of an entrance fee’, the AG stated that the answer could be in the affirmative ... but only if one considered "the actual expression ‘places accessible to the public against payment of an entrance fee’, in isolation from the drafting history, purpose and role of Article 8(3) of [the Rental and Lending Rights Directive] in the system of copyright and related rights" [para 19].

History and rationale of the provision

If one takes instead into account the drafting history of the Rental and Lending Rights Directive, the conclusion is rather different.

The AG recalled [para 22] that Article 8(3) was modelled on Article 13(d) of the Rome Convention and intended to have the same scope. In the Rome Convention the notion of ‘places accessible to the public against payment of an entrance fee’ is that of places "where a fee is levied precisely for the possibility of viewing a television broadcast communicated to the public at that place" [para 24]The reason is that Article 13(d) in the Rome Convention was linked to the practice, which was common in an earlier period of television development, of organising collective showings of television broadcasts, entry to which was subject to a fee. Accordingly, [para 25] when we not are dealing with a fee directly linked to the possibility of viewing a television broadcast, and fees are merely being levied for other services, such as catering services, that situation does not fall within the scope of the term ‘places accessible to the public against payment of an entrance fee’ within the meaning of Article 13(d) of the Rome Convention." 

Buying a beer: NOT
a mandatory fee to watch sports on TV
The AG concluded [para 26] that "a fee for a room in a hotel is not a fee for the possibility of viewing television broadcasts there, but for accommodation. Making television broadcasts available is merely an additional service which a customer expects, in the same way as running water, drinks and an internet connection." 

The AG also rejected the argument that the accessibility of TV set in a room makes it possible to raise the price of the accommodation and consequently part of that price must be regarded as a fee for the possibility of viewing TV broadcasts. To explain this point, the AG drew an analogy with catering establishments and held that [para 30] "[t]he owner of a catering establishment fitted with a television set can also raise the price of his services by dint of that fact, particularly during the broadcasting of programmes of particular interest to the public, such as sports broadcasts. It should be recalled that ordering a place at a table in that establishment will not normally be possible without ordering the food or drink on offer there. That does not mean, however, that the price of a glass of beer can be regarded as a fee for viewing that broadcast and the establishment can be regarded as accessible to the public against payment of an entrance fee within the meaning of Article 13(d) of the Rome Convention. A fee for an accommodation service in a hotel room is precisely the same in nature."

Also applicable under current technical and market conditions

The AG held that such a conclusion based on the history and rationale of the Rome Convention would be also applicable in today's conditions. 

While "a dynamic interpretation of the provisions of law, which is capable of adapting the wording thereof to the changing conditions in fact and thus allowing the objective sought by those provisions to be attained" is necessary [para 35], the AG concluded that no change is needed regarding the interpretation of Article 8(3) of the Rental and Lending Rights Directive. This is so because:
  1. Public showings of TV broadcasts have not disappeared;
  2. "[A] dynamic interpretation of the provisions of law is justified only on condition that it takes account of the objective which the legislature sought to attain in laying down those provisions and serves to realise that objective in changed conditions, but not to replace it with another objective." [para 37]
Comment

This is another carefully drafted and thoughtful opinion of AG Szpunar which bears signifcant points of resemblance with the approach taken in his earlier Opinion in Vereniging Openbare Bibliotheken v Stichting Leenrecht, C-174/15 [noted here].

Readers will recall that this reference from The Netherlands [in progress] has arisen in the context of proceedings brought by the association of Dutch public libraries which, contrary to the position of Dutch government, believes that libraries should be entitled to lend electronic books included in their collections according to the principle "one copy one user". 

Similarly to today's Opinion, also there AG Szpunar stressed the importance of interpreting relevant provisions of EU law in light of their history and rationale, but also - in order to maintain the latter unaltered over time – the need to adopt a dynamic interpretation of legal norms, if changes in circumstances and technology require so. 

[Originally posted on The IPKat on 25 October 2016]

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