1. Acts.
plaintiffs in the present litigation There are several British television channels
that hold intellectual property rights over their emissions and over
many of the contents included in them. The defendant, -TVC-, is a
entity that is dedicated to offering broadcast flows through the Internet
free-to-air television broadcasts, including those of the plaintiffs. The peculiarity of
TVC service is that it is only offered to those users who previously
They have a valid television license to access these contents.
Furthermore, the system of making information available to the public is not
open, but each individual packet of data is directed to a user
individual, and not groups of users. This service is financed through
advertising that is displayed by insertion into the user's computer, respecting
In any case, the advertising previously inserted originally by the
TV channels.
The plaintiffs brought an action against
TVC before the High court of justice for violation of the rights of
intellectual property on its emissions, specifically, for carrying out
acts of communication to the public prohibited by article 20 of the copyright,
Designs and Patents Act of 1988.
TVC before the High court of justice for violation of the rights of
intellectual property on its emissions, specifically, for carrying out
acts of communication to the public prohibited by article 20 of the copyright,
Designs and Patents Act of 1988.
In this situation, the High Court of
Justice poses a series of questions to the CJEU, aimed at
elucidate whether the concept of “communication to the public” in article 3.1 of the
2001 / 29 / CE Directive covers the dissemination via the Internet of broadcasts of
broadcasting to members of the public who would have had the right to access the
themselves using their own television sets or their own computers
laptops at home.
Justice poses a series of questions to the CJEU, aimed at
elucidate whether the concept of “communication to the public” in article 3.1 of the
2001 / 29 / CE Directive covers the dissemination via the Internet of broadcasts of
broadcasting to members of the public who would have had the right to access the
themselves using their own television sets or their own computers
laptops at home.
2. pronouncements.
According to the CJEU, as can be deduced from the twenty-third recital of the
2011 / 29 / CE Directive, as well as articles 2 and 8 of Directive 93/83, the
right of communication to the public must be understood in a broad sense,
way that includes all types of transmission or retransmission of a work to the
public not present at the place of communication. However the right
communication to the public is not susceptible to exhaustion, each of these
acts must be subject to individualized authorization.
According to the CJEU, as can be deduced from the twenty-third recital of the
2011 / 29 / CE Directive, as well as articles 2 and 8 of Directive 93/83, the
right of communication to the public must be understood in a broad sense,
way that includes all types of transmission or retransmission of a work to the
public not present at the place of communication. However the right
communication to the public is not susceptible to exhaustion, each of these
acts must be subject to individualized authorization.
Making it available to the public through
of Internet terrestrial television broadcasts takes place through a medium
specific technical that is different from the means of communication of origin, and,
Consequently, it is a new act of communication that must be
authorized by the rights holders.
of Internet terrestrial television broadcasts takes place through a medium
specific technical that is different from the means of communication of origin, and,
Consequently, it is a new act of communication that must be
authorized by the rights holders.
Regarding the concept of public, the article
3.1 of the 2001 / 29 / CE Directive refers to an indeterminate number of
potential recipients and involves a considerable number of people. He
fact that in the present case the potential recipients access
works through an individualized connection, does not prevent a large
number of people can have access to it, since it is necessary to take into account
takes into account the cumulative effect of making available. It is indifferent,
also, that the public to which the broadcast is directed is not a public
new, since it is an act of communication carried out by
different media, and, therefore, new.
3.1 of the 2001 / 29 / CE Directive refers to an indeterminate number of
potential recipients and involves a considerable number of people. He
fact that in the present case the potential recipients access
works through an individualized connection, does not prevent a large
number of people can have access to it, since it is necessary to take into account
takes into account the cumulative effect of making available. It is indifferent,
also, that the public to which the broadcast is directed is not a public
new, since it is an act of communication carried out by
different media, and, therefore, new.
3. Comment. Esta
sentence adds to the already extensive list of CJEU pronouncements in
matter of public communication within the scope of Directive 2001/29/EC (cf.
among others the SSTJUE of December 7, 2006; C ‑ 306/05, October 4,
2011; C-403 / 08, and October 13, 2011; C-431 / 09). Once again, the CJEU puts
demonstrates the breadth of the concept of communication to the public.
sentence adds to the already extensive list of CJEU pronouncements in
matter of public communication within the scope of Directive 2001/29/EC (cf.
among others the SSTJUE of December 7, 2006; C ‑ 306/05, October 4,
2011; C-403 / 08, and October 13, 2011; C-431 / 09). Once again, the CJEU puts
demonstrates the breadth of the concept of communication to the public.
