A hotel operator and a collective copyright management organization (CMO) were involved in a dispute regarding an episode of a television series broadcast on a public channel. The CMO has alleged that the hotel violated its exclusive right to communicate with the public by making the episode available on televisions in the hotel rooms and the fitness area for guests to watch. The hotel, however, maintains that it obtained the necessary licenses for this purpose. The main legal question is whether this action constitutes a “communication to the public” under Article 3(1) of the InfoSoc Directive.

Keywords: Intellectual property, copyright, Directive 2001/29/EC, communication to the public, hotel television, cable distribution, retransmission, collective management organizations, licensing agreement.

The case involves MPLC Deutschland GmbH, a German collective management organization (CMO), and Citadines Betriebs GmbH, a hotel operator.

Citadines transmitted the episode via television sets installed in its hotel rooms and fitness areas using the hotel’s cable distribution network. Citadines argued that it had obtained, in total, the required licence from the relevant copyright management organisations, for which it pays a flat-rate fee each year for each hotel room. The CMO disagreed and maintained that the licence in question did not cover the direct and indirect retransmission of radio and television programmes using a distribution network belonging to a hotel.

The main legal question lies in determining whether such dissemination is subsumable under the concept of “communication to the public” by Article 3 (1) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society entitled “ Right of communication to the public of works and right of making available to the public other subject-matter”, which establishes the following:

“Member States shall provide authors with the exclusive right to authorise or prohibit any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them.”.

The Landgericht München I (Regional Court, Munich I) initially prohibited Citadines from making the episode available to the public, a decision later confirmed.

The case was referred to the CJEU from the Oberlandesgericht München (Higher Regional Court Munich, Germany), for a preliminary ruling:

“Must Article 3(1) of Directive 2001/29/EC of the European Parliament and of the Council of 22 March 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (¹) be interpreted as precluding a national provision or practice according to which the provision of physical facilities for enabling or making a communication — such as television sets in hotel rooms or hotel fitness rooms — is regarded as communication to the public when, while the transmission signal, in addition, is retransmitted to the physical facilities via the hotel’s own cable distribution system, that cable retransmission takes place lawfully on the basis of a licence acquired by the hotel?”.

The court highlighted that the concept of “communication to the public” consists of two key criteria that must be met together: (1) the act of communicating a work and (2) the communication of that work to a “public”.

Additionally, these criteria require an individual assessment (3).

The CJEU emphasized that this assessment must consider several interconnected criteria, which are not independent and must be considered together. Furthermore, these criteria should be evaluated individually and about each other, as their significance may vary in different situations.

The Luxembourg judges underlined the user’s role (in this case, the hotel) and the intentional nature of their actions. According to the CJEU, a user engages in an “act of communication” when they knowingly intervene to provide their customers with access to a protected work, mainly when, without their intervention, the customers would not be able to enjoy the author’s work.

On 11 April 2024, CJEU delivered its judgment in case C-723/22, Citadines v MPLC, concerning the interpretation of the concept of “communication to the public” within the meaning of Article 3(1) considering the broadcast of an episode on television in rooms and other areas of a hotel constitutes a communication to the public and requires the consent of the author of the work or the entity that represents it.

Carlos Torres | ESHTE