Judgment of the Court of Justice of 11 April 2024, Citadines (C-723/22).
1. Facts
The judgment stems from a preliminary question referred by the Munich Regional Court (Landgericht München I) in the context of a dispute between Citadines Betriebs GmbH (“Citadines”) and MPLC Deutschland GmbH b (“MPLC”), concerning the public broadcast of an episode of a television series via televisions provided in the rooms and gyms of a Citadines-owned hotel, for its guests to view free of charge. The television signal was retransmitted within the hotel via an internally managed cable distribution system.
MPLC is an independent, for-profit management operator representing audiovisual producers, who is taking action against Citadines requesting that the communication to the public of the episode referred to in the previous paragraph be stopped, the Regional Civil and Criminal Court of Munich issuing an order for provisional measures prohibiting the making of said episode available to the public.
Following this action, Citadines filed an appeal with the Higher Regional Court for Civil and Criminal Matters in Munich (Higher Regional Court of Munich) and MLPC responds by alleging that, despite Citadines having signed distribution license agreements with German collective copyright management societies, by retransmitting the signal through a cable distribution system of the establishment itself, it was violating the public communication right that it manages on behalf of the producers it represents.
This doubt arises because the German Copyright Act (“UrhG”) divides the right of communication to the public, on the one hand, in its Article 20b relating to retransmission;The right to retransmit a work transmitted in the context of a simultaneous, unaltered, and complete retransmission by cable or microwave systems (cable distribution) may be exercised only by a collective management organization for copyright. This rule does not apply to the rights exercised by a broadcasting organization in relation to its own broadcasts."and, on the other hand, in its Article 22 relating to the communication of broadcast emissions;"The right to communicate broadcasts and to make them available to the public is the right to make broadcasts and to make such works available to the public through screens, loudspeakers or similar technical devices".
2. Pronouncements
In its preliminary question, the court asks whether Article 3(1) of the 2001 / 29 / CE Directive It opposes a national practice that considers as communication to the public the provision of television sets in the rooms and gym of a hotel establishment when such televisions receive and retransmit the signal through cable distribution, even when there is a license for cable distribution subscribed with collective management entities.
The Court recalls that, while it is for the national court to determine whether Citadines is carrying out an act of public communication, the CJEU provides the court with all the relevant elements for interpreting EU law, and, in particular, states that:
- The mere provision of physical facilities (televisions) does not in itself constitute communication to the public within the meaning of the Directive. The relevant factor is whether there is an act that involves making a protected work available to a public (other than the original public of the transmission) through an act of communication.
- Regarding retransmission via a cable distribution system from the establishment itself, the Directive 93/83 / EEC (on cable distribution) defines and regulates this type of distribution act and distinguishes between the mere provision of a signal and acts that, due to their technical nature, can be classified as communication to the public.
- The existence of a license agreement with collective management entities for cable distribution does not in itself resolve the question of whether there is communication to the public in the European sense; that is, the contract is not enough: it is necessary to analyze whether there is an act of communication in accordance with Union Law.
It is for the above reasons that the CJEU answers the preliminary question by determining that making available television sets installed in the hotel when, in addition, a signal is retransmitted to said televisions by its own cable, constitutes a communication to the public within the meaning of Article 3(1) of the 2001 / 29 / CE Directive.
3. Comment
The ruling addresses a classic problem in European intellectual property law: the delimitation of the concept of “communication to the public"to the detriment of supposed specialized technicians."
The Court reaffirms the doctrine that the mere provision of technical means (such as televisions) is not considered communication to the public unless there is an act of transmission that involves making works available to the public at an intermediate stage. This prevents an expansive 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 the regime of the Directive 93/83 / EEC (cable distribution) and the 2001 / 29 / CE Directive (copyright), the CJEU delimits two functionally distinct areas:
- Cable distribution may be regulated contractually and authorized through specific licenses;
- But communication to the public requires a factual legal judgment on the nature of the act, beyond the existence of such a license.
The Court rightly points out that the determination of the material facts (whether the specific conduct constitutes communication to the public) lies with the referring court. This is in line with the classic separation of functions between the CJEU—which interprets EU law—and 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, especially when the transmission or retransmission of signals is carried out 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 involve a genuine impact on the rights market.
Mabel Klimt, Managing Partner of ELZABURU.
