Patricia Mariscal (Elzaburu), The Ten Commandments of Communication to the Public: A Brief Review of CJEU Case-law

Patricia Mariscal (Elzaburu), The Ten Commandments of Communication to the Public: A Brief Review of CJEU Case-law, Kluwer Copyright Blog, 29.05.2017

In recent years, the Court of Justice has issued a growing number of decisions in response to questions referred for a preliminary ruling on the concept and delimitation of the right of communication to the public in the European Union.  CJEU case-law on the topic is currently overwhelming.

The particular features of each of the increasingly numerous and complex techniques used raise genuine interpretative uncertainty among the Member States, who try and fit them into a concept –communication to the public– that is supposedly harmonised. Meanwhile, the Court of Justice seems to be tying itself in knots in an effort to respond to all the questions sent its way and, at the same time, maintain a solid, clear and coherent line of interpretation. However, the truth is that a glance over the judgments that the Court has given over the last ten years reveals case-law that has been cobbled and patched together, rendering the right of communication to the public a cumbersome and ambiguous concept. Successive CJEU decisions have added on so many exceptions, exceptions to exceptions, specifications, nuances and new concepts that doubt has now been cast on the existence of a unified and standardised concept of this right.

A clear example of this situation is the broadcasting of works in public places. In 2006, the CJEU ruled, in SGAE v Rafael hoteles (C-306/05), that the placing of television sets in the rooms of a hotel constituted an act of communication to the public by the hotel, since the communication did not take place in a strictly domestic location. In the grounds for its decision, the CJEU took account, among other issues, of the “cumulative” effect of the successive clients occupying the rooms, which meant that they could be considered overall as being a “new public”.

Six years later, in SCF v Del Corso (C-135/10), the Court of Justice nevertheless considered that the broadcasting of phonograms in a dental practice did not constitute an act of communication to the public. Unlike communication in hotel establishments, the public of a dental practice would be comprised of a much smaller group of people, who were clearly not there to listen to music –which would be a fortuitous act imposed on them– but to receive a medical service.

The same issue cropped up again in the CJEU with regard to public communication in spa establishments (Osa, C-351/12) and rehabilitation centres (Reha Training, C-117/15), to which the Court applied the doctrine established in the SGAE case.  Paragraph 63 of the Reha Training judgment reflects and substantially sums up the Court’s reasoning: “the broadcasting (…) insofar as it is intended to create a diversion for the patients of a rehabilitation centre, such as that at issue in the main proceedings, during their treatment or in the waiting time, constitutes the supply of additional services which, while not having any medical benefit, does have an impact on the establishment’s standing and attractiveness, thereby giving it a competitive advantage.”

All this just goes to show what a vast range of cases there are regarding the public communication of works, which forces the CJEU to constantly recast and specify the concept and scope of this right.

An exercise in abstraction has led to this humble commandments proposal, which merely aims to compile some of the guidelines and interpretative principles established by the CJEU throughout the past years.

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