## Facts

- A German rehabilitation center operator installed television sets in two waiting rooms and a training room so patients could watch broadcast television programs.
- The operator did not obtain authorization or pay royalties for the broadcasts to the collecting society managing musical copyrights and related rights.
- The collecting society sued for payment, asserting the broadcasts were a protected “communication to the public.”
- A German court referred questions for a preliminary ruling on whether the conduct constituted a “communication to the public” under EU rules governing authors’ rights and performers/phonogram producers’ remuneration.

## Issues

1. Whether the concept of “communication to the public” should be interpreted consistently for authors’ rights and neighboring rights when the same broadcast implicates both.
2. Whether installing televisions and making broadcast signals available to patients in a rehabilitation center constitutes a “communication to the public.”
3. Whether factors such as the size of the audience, the non-private setting, and any competitive advantage from providing television are relevant to the analysis.

## Decision

- The court ruled that the concept of “communication to the public” must be given the same meaning for both the authors’ right of communication and the neighboring-rights remuneration provision when both are implicated by the same use.
- The court held that a rehabilitation center operator that installs televisions and transmits broadcast signals so patients can watch programs performs an act of “communication to the public.”
- The court reasoned that the operator’s intervention is deliberate and necessary to make the broadcasts accessible to patients on the premises.
- The court found the patients constitute a “public,” not a private circle, and the group is not too small or insignificant, including because viewing may occur simultaneously in different parts of the facility.
- The court treated the provision of television as an additional service capable of improving the establishment’s attractiveness and competitive position, supporting the characterization as a public communication.
- The court indicated the patients were not taken into account when the original broadcast was authorized and remunerated, supporting the conclusion that a further authorization/remuneration is required for this on-premises communication.

## Legal Principles

- “Communication to the public” is assessed through complementary, interdependent factors, including (i) an act of communication and (ii) communication to a public, evaluated in context.
- An “act of communication” includes intentional transmission or making available of protected content by any technical means, where the operator’s intervention is indispensable for access by the audience on the premises.
- A “public” includes an indeterminate or sufficiently large group beyond a private circle; patients in a rehabilitation facility can qualify.
- Profit-making intent is not required, but the provision of protected content as an additional service conferring competitive advantage is a relevant factor.
- Where the establishment’s audience was not contemplated in the authorization/remuneration for the initial broadcast, the establishment’s communication may require separate authorization and equitable remuneration under the applicable regimes.

## Conclusion

Broadcasting television programs to patients through televisions installed in a rehabilitation center is a “communication to the public,” and when both authors’ rights and neighboring rights are implicated, the concept is interpreted uniformly, requiring authorization and payment of the applicable royalties/remuneration.


Reha Training Gesellschaft für Sport- und Unfallrehabilitation mbH v. Gesellschaft für musikalische Aufführungs- und mechanische Vervielfältigungsrechte eV (GEMA), Case C-117/15 (C.J.E.U. 2016)