Federal Court of Justice refers to the Court of Justice of the European Union Questions for further Clarification on the Term of Communication to the Public

Year of issue 2024
Date of issue 09.02.2024

No. 25/2024

Decisions of 8 February 2024 - I ZR 34/23 (“Retirement Home“) and I ZR 35/23

The First Civil Panel of the Federal Court of Justice competent, inter alia, for copyright matters has referred to the Court of Justice of the European Union questions for the purpose of clarification whether the operator of a retirement home, who forwards the broadcasting services received via a satellite reception system to the home residents through a cable network, conducts a communication to the public.

Facts and Circumstances:

The plaintiffs are collecting societies exercising the copyright exploitation rights of music creators (I ZR 34/23) and broadcasting organizations (I ZR 35/23). The defendant operates a senior citizens’ and nursing centre. In the centre‘s nursing facility, 89 care-dependent senior citizens, who are provided with comprehensive care and nursing services, permanently reside in 88 single and 3 double rooms. In addition to the nursing facility, the centre is equipped with various common areas like dining halls and recreation rooms.

The defendant receives, via its own satellite reception system, broadcasting services (television and radio) which it forwards in simultaneous, unchanged and complete manner through its cable network to the television- and radio-connections in the home residents‘ rooms.

The plaintiffs consider the forwarding of the broadcasting services as an intervention into the copyright exploitation rights exercised by them and have therefore requested the defendant -to no avail- to conclude licence agreements.

Previous Proceedings:

In both proceedings, the regional court has granted the claims and, corresponding to the plaintiff’s demand for relief, has enjoined the defendant from forwarding the broadcasting services.

Upon the defendant’s appeal on facts and law, the higher regional court has dismissed the claims. The forwarding of the broadcasting services did not meet the requirements for a communication to the public, as such communication was limited to the restricted group of persons consisting of the home residents who, similar to the members of a homeowners‘ association, were a structurally very homogeneous and stable group of persons with rather low fluctuation, who have arranged for the permanent stay in the retirement home. The common areas offered the residents the opportunity of sharing joint meals, personal communication and social interaction. Unlike in a hotel or a rehabilitation facility, there was a close relationship among the residents as they had chosen this home as domicile for the last chapter of their lives.
With their appeals on points of law the plaintiffs continue to pursue their demands for relief.

The Ruling of the Federal Court of Justice:

In the proceedings I ZR 34/23, the Federal Court of Justice has referred to the Court of Justice of the European Union three questions regarding the interpretation of the term of “communication to the public“ as contained in article 3 (1) of Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society.

First, it shall be clarified by the Court of Justice of the European Union if the residents of a commercially operated retirement home having television- and radio-connections in their rooms, to which the retirement home operator forwards through its cable network in simultaneous, unchanged and complete manner the broadcasting services received via its own satellite reception system, in the meaning of the case law established by the Court of Justice of the European Union on the term of “communication to the public“ pursuant to article 3 (1) of Directive 2001/29/EC are an “indeterminate number of potential recipients“ (who, like the guests of a hotel or the patients of a rehabilitation centre, may constitute a public) or if these residents are “specific individuals belonging to a private group of persons” (who do not constitute a public).

Furthermore it is doubtful, if the definition applied so far by the Court of Justice of the European Union, according to which the classification as “communication to the public“ in the meaning of article 3 (1) of Directive 2001/29/EC shall require that “the protected work must be communicated using specific technical means, different from those previously used (like, in this case, the forwarding through cable network of the broadcasting services received via a satellite reception system) or, failing that, to a new public, that is to say, to a public that was not already taken into account by the copyright holders when they authorised the initial communication to the public of their work”, is generally valid still, or if the technical procedure applied shall only be important in cases, where a forwarding of contents initially received in terrestrial, satellite- or cable-based manner (in contrast to the case of dispute) occurs into the open internet.

Moreover, it has not been distinctly clarified yet, whether it is a matter of a “new public“ in the meaning of the case law established by the Court of Justice of the European Union issued on the term of “communication to the public“ pursuant to article 3 (1) of Directive 2001/29/EC, if the retirement home operator, acting for profit purposes, forwards in simultaneous, unchanged and complete manner through its cable network the broadcasting services, that it received via its own satellite reception system, to the television- and radio-connections in the home residents‘ rooms. It is particularly doubtful, whether this evaluation depends on the question, if the residents have the opportunity of receiving the television- and radio-programmes, independent from the cable transmission, terrestrially in their rooms as well as on the question, if the holder of rights already obtain a remuneration for giving their consent to the initial broadcasting.

The proceedings I ZR 35/23 have been stayed by the Federal Court of Justice until the Court of Justice of the European Union will have decided in the proceedings I ZR 34/23.

Karlsruhe, 8. February 2024

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