Judgment of the Court of Justice of 20 June 2024, GEMA (C-135/23).
Acts
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 equipped with indoor antennas in several apartments, allowing them to receive signals and broadcast programs, including music, to the tenants.
GEMA considered that this making available by GL constituted a communication to the public of protected works, in contravention of the exclusive right of communication to the public provided for in the 2001 / 29 / CE Directive.
The referring German court —Potsdam District Court— raised a preliminary question before the Court of Justice of the European Union for the interpretation of the concept of communication to the public in this case.
pronouncements
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 exhausted by the mere provision of technical facilities (such as televisions with antennas) if there is no additional act that effectively makes protected works available to a public different from the one originally intended.
- The profit motive of making the devices available, although relevant, does not in itself determine the existence of communication to the public in the European sense; the decisive factor is whether an act occurs that transfers the protected works to a new public beyond the usual private reception.
- It is for the referring court to determine, in accordance with the specific facts and applicable national regulations, whether GL's conduct constitutes an act of communication to the public in accordance with European criteria.
- The Court notes that assessing whether communication to the public exists requires a joint factual and legal examination, taking into account the existence of a new public and the effective control of making the information 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, developed in a long series of pronouncements 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 transferring to the context of rented housing criteria previously applied to other environments (such as hotels or public places), clarifying that it is not enough to make available technical equipment that can receive emissions: it is necessary to determine whether there is actually making protected works available to a “new audience"different from the original audience of the broadcast. This line of interpretation seeks to avoid a disproportionate extension of the exclusive right of communication to the public that could encompass activities of a purely technical nature."
Furthermore, the judgment underscores the importance of the new public criterion and technological neutrality: the mere technology used (televisions with indoor antennas) cannot, in itself, generate a new act of communication if there is no effective making of works available to the public. In this way, the Court reinforces a functional approach that requires a real connection with the exercise of the exclusive rights provided for in the 2001 / 29 / CE Directiveavoiding formalistic interpretations that would have broad restrictive repercussions on legitimate activities of owners and tenants.
In conclusion, the CJEU precisely defines the elements that constitute the concept of communication to the public, offering a clear guideline for national courts when faced with similar cases, and ensuring a balanced application of EU copyright law.
Ines de Casas, Senior Associate, Legal area
