Judgment of the Court of Justice of June 20, 2024, GEMA (C-135/23).
Facts
The case stems from a dispute between the collective management organization GEMA and GL, a company that operates an apartment building in Germany. GL installed televisions in several of the apartments that are equipped with indoor antennas capable of receiving signals and broadcasting programs—including music—to the tenants.
GEMA considered that GL's act of making the works available constituted a communication to the public of protected works, in violation of the exclusive right of communication to the public provided for in Directive 2001/29/EC.
The referring German court—the Amtsgericht Potsdam—submitted a request for a preliminary ruling to the Court of Justice of the European Union seeking an interpretation of the concept of “communication to the public” in this case.
Statements
The Court of Justice of the European Union interprets Article 3(1) of Directive 2001/29/EC and establishes the following criteria:
- The concept of “communication to the public” is not limited to the mere provision of technical facilities (such as televisions with antennas) if there is no additional act that effectively makes protected works available to an audience other than the one originally intended.
- The profit-making purpose of making the devices available, while relevant, does not in and of itself determine the existence of a communication to the public under European law; what is decisive is whether an act occurs that conveys the protected works to a new audience beyond the scope of normal private reception.
- It is for the referring court to determine, based on the specific facts and applicable national law, whether GL’s conduct constitutes an act of communication to the public under European standards.
- The Court notes that determining whether communication to the public has occurred requires a combined factual and legal analysis, taking into account the existence of a new audience and the effective control over the making available.
Comment
This ruling contributes to the Court’s established case law on the concept of“communication to the public”in the field of intellectual property, as developed in a long series of decisions that seek to balance the protection of authors’ rights with legal certainty and technological neutrality.
The specific novelty of Case C-135/23 lies in applying criteria previously used in other contexts (such as hotels or public places) to the context of rental housing, clarifying that it is not sufficient merely to make technical equipment capable of receiving broadcasts available: it is necessary to determine whether protected works are in fact being made available to a“new audience”distinct from the original audience of the broadcast. This interpretive approach seeks to prevent a disproportionate expansion of the exclusive right of communication to the public, which could encompass activities of a purely technical nature.
Furthermore, the ruling underscores the importance of the “new audience” criterion and technological neutrality: the technology used alone (televisions with indoor antennas) cannot, by itself, give rise to a new act of communication if there is no actual making available of works to the public. In this way, the Court reinforces a functional approach that requires a genuine connection to the exercise of the exclusive rights provided for in Directive 2001/29/EC, thereby avoiding formalistic interpretations that would have far-reaching restrictive effects on the legitimate activities of owners and tenants.
In conclusion, the Court of Justice precisely defines the elements that constitute the concept of “communication to the public,” providing clear guidance for national courts when they encounter similar cases and ensuring a balanced application of EU law on copyright.
Inés de Casas, Senior Associate, Legal Department