TV sets are a standard item in most hotels. Some hotels provide accessibility to television stations free of charge; others generate revenue by charging extra for cable or satellite TV facilities. Hotels generally have communal aerials and satellite dishes belonging to the hotel that enable broadcasts from a variety of broadcasters to be received and broadcast in all its rooms.
Broadcasting organisations have the exclusive right to authorise or prohibit the rebroadcasting of their broadcasts and to communicate such broadcasts to the public if such communication is made in places accessible to the public against payment of an entrance fee.
Within the context of this right, the Austrian collecting society that manages the rights of various television broadcasters sued an Austrian hotel group for allowing TV programmes to be received and viewed by its paying guests without paying any royalty. The collecting society argued that the installation of TV sets that relayed broadcasts amounts to communication to the public and contended that the hotel rooms are places accessible to the public against payment of an entrance fee. Since this was an activity subject to the exclusive right of the television broadcasters, the collecting society insisted that the hotel group was bound to pay the applicable fee.
On the other hand, the hotel group argued that hotel rooms are not places accessible to the public against payment of an entrance fee within the meaning of the EU Rental and Lending Rights Directive.
The Commercial Court in Vienna requested a preliminary ruling from the Court of Justice of the European Union (CJEU). The matter before the court boils down to whether a hotel can be regarded as a place that is accessible to the public against payment of a fee.
The directive addresses instances where the fee is paid for the broadcast and this is where intellectual property rights are protected
The Advocate General of the CJEU recently issued his opinion on the dispute. In reaching his conclusion, the Advocate General started off by addressing the basic term of a communication to the public. In line with previous judgments of the court, he opined that providing a television or radio signal by means of TV sets installed in hotel rooms is deemed to be a communication to the public within the meaning of the EU directive.
Nonetheless, the Advocate General disagreed with the position taken by the Austrian collecting society that a hotel room constitutes a place accessible to the public against payment of an entrance fee. He considered that the protection afforded to intellectual property rights holders under the EU directive was not such as to cover broadcasts from TV sets installed in hotel rooms. In reaching this conclusion, he considered that the intention was to make the provision applicable to all places where a fee is levied specifically for the possibility of viewing a television broadcast communicated to the public at that place.
A TV set in a hotel room is considered as a hotel amenity similarly to other amenities such as Wi-Fi access or in-room bar. The price for a hotel room covers the accommodation provided and not the possibility of watching radio or TV, accessing Wi-Fi or having a beverage in the room.
In contrast, the directive addresses instances where the fee is paid for the broadcast and this is where intellectual property rights are protected.
In making this distinction, the Advocate General concluded that while having amenities in a room is generally reflected in the price of the accommodation, the price paid is an overall charge applicable for the accommodation not for the individual services provided with that accommodation. He drew an analogy with catering establishments fitted with a television set. Although a bar can raise its prices during the broadcasting of programmes of particular public interest, the price of a drink cannot be regarded as a fee for viewing the broadcast and the catering establishment cannot be regarded as accessible to the public against payment of a fee. This was identical to the present case.
The Advocate General deemed that a dynamic interpretation of the provisions of the EU directive necessitate the exclusion of hotel rooms from the scope of the exclusive rights granted to right holders under that directive.
jgrech@demarcoassociates.com
Josette Grech is adviser on EU law at Guido de Marco & Associates.