No Levy Due to Broadcasting Organisations for Television and Radio Sets Installed in Hotel Rooms
- 24/02/2017
- Articles
On 16 February 2017, the Court of Justice of the European Union (“ECJ”) held that hotel rooms do not qualify as “places accessible to the public against payment of an entrance fee” under copyright rules. The Court thus upheld the opinion issued by Advocate General Szpunar (the “AG”) on 25 October 2016 (See, VBB on Belgian Business Law, Volume 2016, No. 12, p. 17) (Case 641/15, Verwertungsgesellschaft Rundfunk GmbH v Hettegger Hotel Edelweiss GmbH).
The dispute involved a German collecting society for the management of copyright and related rights of television broadcasters, the Verwertungsgesellschaft Rundfunk (“Rundfunk”), and Hettegger Hotel Edelweiss (“Edelweiss”). Before the Vienna Commercial Court, Rundfunk argued that, by enabling a television signal to be received in hotel rooms, Edelweiss performed an act of communication of television broadcasts to the public in a place accessible to the public against payment of an entrance fee within the meaning of Article 8(3) of Directive 2006/115/EC of 12 December 2006 on rental rights and on specific rights related to copyright in the field of intellectual property (the “Rental Rights Directive”). This provision grants broadcasting organisations an 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”. Hence, Rundfunk sought to impose a levy on Edelweiss. The Vienna Commercial Court stayed the proceedings and referred a question for a preliminary ruling to the ECJ with regard to the interpretation of Article 8(3) of the Rental Rights Directive.
Relying on its previous case-law regarding Directive 2001/29/EC of 22 May 2001 on the harmonisation of specific aspects of copyright and related rights in the information society (the “InfoSoc Directive”), the ECJ first held that the provision of a signal by means of television or radio sets installed in hotel rooms qualifies as a communication to the public. However, the ECJ then explained that, contrary to Directive 2001/29 and, in particular, to its Article 3(1), the exclusive right of broadcasters provided for in Article 8(3) of the Rental Rights Directive is limited to cases of communication to the public in places accessible to the public against payment of an entrance fee.
Hence, the ECJ analysed the concept of “places accessible to the public against payment of an entrance fee”. Agreeing with the AG, it held that, contrary to the price of a restaurant service, the price of a hotel room is not an entrance fee asked in return for the communication of a television or radio broadcast. Since additional services such as providing equipment in rooms that enable television and radio broadcasts are generally included in the price of the overnight stay, the ECJ found that the price of a hotel room instead constitutes the consideration for the accommodation service to which specific other services may be added depending on the hotel category. Hence, the ECJ decided that although the distribution of a signal by means of television and radio sets installed in hotel rooms is an additional service influencing the standing of the hotel and the price of the rooms, such an additional service is not offered in a place accessible to the public against payment of an entrance fee within the meaning of Article 8(3) of the Rental Rights Directive.
Consequently, the ECJ concluded that, although the provision of a signal by means of television or radio sets installed in hotel rooms constitutes a communication to the public, this service does not fall within the scope of the exclusive right provided for in Article 8(3) of the Rental Rights Directive, as it is not “offered in a place accessible to the public against the payment of an entrance fee”.