Copyright And Communication To Public In Hotel Rooms

On 25 October 2016, Advocate General Szpunar ("AG") issued an opinion on the interpretation of the terms "communication to the public" and "places accessible to the public against payment of an entrance fee" (Case C 641-15, Verwertungsgesellschaft Rundfunk v Hettegger Hotel Edelweiss). In essence, the AG is of the opinion that hotel rooms do not qualify as "places accessible to the public against payment of an entrance fee" under Copyright law.

The opinion of the AG stems from a reference for a preliminary ruling from the Vienna Commercial Court in proceedings between Verwertungsgesellschaft Rundfunk ("Rundfunk") - a collecting society for the management of copyright and related rights - and Hettegger Hotel Edelweiss ("Edelweiss"). Rundfunk is a collecting society representing the interests of television broadcasters and sought to impose a levy on Edelweiss. Rundfunk argued that Edelweiss, by enabling a television signal to be received in the rooms of the hotel which it operates, is communicating to the public the broadcasts of television broadcasters in a place accessible to the public against payment of an entrance fee. According to Rundfunk, Edelweiss must thus pay the appropriate fees to obtain authorisation from the right holders.

The Vienna Commercial Court decided to stay the proceedings and refer a question to the Court of Justice of the European Union ("ECJ") concerning the interpretation of Article 8(3) of Directive 2006/115/EC of 12 December 2006 on rental rights and on certain rights related to copyright in the field of intellectual property ("Rental Rights Directive").

With regard to the term "communication to the public", the AG departed from the previous case law of the ECJ and stated that installing television sets in hotel rooms and providing a television signal via them constitutes communication to the public within the meaning of Article 3(1) of Directive 2001/29/EC of 22 May 2001 on the harmonisation of copyright and related rights in the information society ("InfoSoc Directive").

However, the object of the relevant provision under the Rental Rights Directive is different from that of the InfoSoc Directive. Under the Rental Rights Directive, the exclusive right of broadcasting organisations is limited to situations where communication to the public takes place in "places accessible to the public against payment of an entrance fee". According to the AG, the interpretation of that term is not straightforward. Therefore...