Judgment of the Court of Justice of April 11, 2024, Citadines (C-723/22).
1. Facts
The judgment stems from a preliminary ruling requested by the Munich Regional Civil and Criminal Court (Landgericht München I) in the context of the dispute between Citadines Betriebs GmbH (“Citadines”) and MPLC Deutschland GmbH b (“MPLC”), regarding the communication to the public of an episode of a television series via televisions made available in the guest rooms and fitness centers of a hotel owned by Citadines, so that its guests could watch it over-the-air. To that end, the television signal was retransmitted within the hotel via an internally managed cable distribution system.
MPLC is an independent, for-profit management company that represents audiovisual producers. It filed a lawsuit against Citadines seeking to halt the public distribution of the episode referred to in the previous paragraph, and the Munich Regional Civil and Criminal Court issued an order for provisional measures prohibiting the public distribution of that episode.
Following this action, Citadines filed an appeal with the Munich Higher Regional Court for Civil and Criminal Matters (Oberlandesgericht München), and MLPC responded by arguing that, although Citadines had entered into distribution license agreements with the German copyright collective management organizations, by retransmitting the signal through the establishment’s own cable distribution system, it was infringing upon the right of public communication that MLPC manages on behalf of the producers it represents.
This uncertainty stems from the fact that the German Copyright Act (“UrhG”) divides the right of communication to the public, on the one hand, in Section 20b, which pertains to retransmission;“The right to retransmit a work broadcast in the context of a simultaneous, unaltered, and complete retransmission via cable or microwave systems (cable distribution) may only be exercised by a collective management organization for copyright. This provision shall not apply to rights exercised by a broadcasting organization in relation to its own broadcasts”and, on the other hand, in Section 22 concerning the communication of broadcast programs;“The right to communicate broadcast programs and to make them available to the public is the right to broadcast such programs and to make such works available to the public via screens, loudspeakers, or similar technical devices.”
2. Statements
In its request for a preliminary ruling, the referring court asks whether Article 3(1) of Directive 2001/29/EC precludes a national practice that treats the provision of televisions in guest rooms and the fitness center of a hotel as a communication to the public when those televisions receive and retransmit the signal via cable distribution, even where a license for cable distribution has been entered into with collective management organizations.
The Court notes that, while it is for the national court to determine whether Citadines is engaging in an act of communication to the public, the Court of Justice provides the national court with all the relevant elements for interpreting Union law and, specifically, states that:
- The mere making available of physical equipment (televisions) does not in itself constitute a communication to the public within the meaning of the Directive. What matters is whether there is an act that involves making a protected work available to a public (other than the original audience of the broadcast) through an act of communication.
- With regard to retransmission via an establishment’s own cable distribution system, Directive 93/83/EEC (on cable distribution) defines and regulates this type of distribution and distinguishes between the mere making available of a signal and acts that, due to their technical nature, may be classified as communication to the public.
- The existence of a license agreement with collective management organizations for cable distribution does not, in and of itself, resolve the question of whether there is a communication to the public under European law; that is, the agreement alone is not sufficient: it is necessary to analyze whether there is an act of communication in accordance with European Union law.
For this reason, the Court of Justice rules on the preliminary ruling by determining that making television sets installed in a hotel available to guests—where, in addition, a signal is transmitted to those television sets via the hotel’s own cable system—constitutes a communication to the public within the meaning of Article 3(1) of Directive 2001/29/EC.
3. Comment
The ruling addresses a classic issue in European intellectual property law: the definition of the concept of“communication to the public”in the context of specialized technical cases.
The Court reaffirms the doctrine that the mere act of making technical means (such as televisions) available does not constitute communication to the public unless there is a transmission act that involves making works available to an audience at an intermediate stage. This prevents a broad interpretation of the exclusive right that could encompass activities with no real impact on the licensing market, which would be contrary to the balance between protection and access to the internal market.
By distinguishing between the regime established by Directive 93/83/EEC (cable distribution) and that established by Directive 2001/29/EC (copyright), the Court of Justice defines two functionally distinct areas:
- Cable distribution may be governed by contractual provisions and authorized through specific licenses;
- However, disclosure to the public requires a factual legal determination regarding the nature of the act, beyond the mere existence of such a license.
The Court rightly points out that the determination of the factual circumstances (whether or not the specific conduct constitutes communication to the public) is a matter for the referring court. This is in line with the traditional separation of roles between the Court of Justice—which interprets Union law—and the national courts—which apply those standards to the facts.
This ruling has a direct impact on the interpretation of exclusive rights in technical and digital environments, particularly when the transmission or retransmission of signals occurs through internal systems or closed networks. It reinforces the idea that copyright protection must be balanced and proportionate and prevents broad concepts of “communication to the public” from being used to demand licenses in situations that do not genuinely affect the rights market.
Mabel Klimt, Managing Partner at ELZABURU.