Compensation for Irish bedroom shenanigans: a matter of Opinion

Determined to avoid making payments
if the ECJ rules against the Irish State,
some hotel owners will make their guests
play phonograms only off the premises

Today saw an all-Irish contest in Luxembourg when Advocate General Trstenjak rendered an Opinion to guide the Court of Justice of the European Union (ECJ) in Case C-162/10 Phonographic Performance (Ireland) Ltd v Ireland and Others, a reference for a preliminary ruling from the Commercial Division of the Irish High Court.  Before getting down to the serious matter of identifying the relevant law and advising the ECJ what they should tell the Irish to be doing with it, the AG treated us to a little scene-setting:

"1. Just as Gutenberg’s invention of the printing press ultimately led to copyright protection of written works [and to copyright infringement, notes Merpel], Edison’s invention of the phonograph not only increased the economic importance of copyright protection of musical works, but also paved the way for the introduction of related rights for performers and phonogram producers. If a phonogram is used, this affects not only the author’s right to the communicated copyright work, but also the related rights of performers and phonogram producers.

2. The present reference for a preliminary ruling from the High Court of Ireland ... concerns the right to equitable remuneration under Article 8(2) of Council Directive 92/100 ... on rental right and lending right and on certain rights related to copyright in the field of intellectual property ... and of Directive 2006/115 ... on rental right and lending right and on certain rights related to copyright in the field of intellectual property ... which must be paid in respect of communication to the public of a phonogram already published for commercial purposes.

3. The referring court wishes to know ... whether such a right also arises where a hotel operator provides televisions and/or radios in guest bedrooms to which it distributes a broadcast signal. The answer to this question depends on whether in such a case the operator uses the phonograms contained in the radio and television broadcasts for communication to the public.

4. Secondly, the referring court asks whether such an operator also uses those phonograms for communication to the public where it does not provide radios or televisions in the bedrooms, but players and the relevant phonograms.

5. Thirdly, the referring court is seeking to ascertain whether a Member State which does not provide for a right to equitable remuneration in such cases may rely on the exception under Article 10(1)(a) of Directive 92/100 and of Directive 2006/115, on the basis of which the Member States may provide for limitations to the right to equitable remuneration in respect of private use.

6. The substance of these questions is closely connected with SGAE [noted by the IPKat here]. In that case, the Court found ... that communication to the public within the meaning of Article 3(1) of Directive 2001/29 ... on the harmonisation of certain aspects of copyright and related rights in the information society exists where a hotel operator distributes a signal by means of television sets provided in its bedrooms, irrespective of the technique used to transmit the signal. It also found that the private nature of hotel rooms does not preclude communication to the public. In the present case, the question arises in particular whether these principles, which concern communication to the public of copyright works under Article 3(1) of Directive 2001/29, can be applied to the notion of communication to the public within the meaning of Article 8(2) of Directive 92/100 and of Directive 2006/115, which concerns the related rights of performers and phonogram producers.

7. ... the present case is closely connected with Case C-135/10 SCF, in which I deliver my Opinion on the same date as in the present case [and which, frustratingly, has not been made available yet in English]. SCF relates ... to whether a dentist who makes radio broadcasts audible to his patients in his practice using a radio provided in his practice must pay equitable remuneration pursuant to Article 8(2) of Directive 92/100 and of Directive 2006/115 because he communicates the phonograms used in the radio programme indirectly to the public".

So what happened in this case? The facts were simple:

" The applicant ... is a licensing body. Its members are phonogram producers who hold related rights in phonograms. The applicant asserts, on behalf of its members, their rights arising from the communication of their phonograms to the public.

40. The defendant in the main proceedings is the Irish State.

41. The applicant in the main proceedings takes the view that the Irish State has not properly transposed Directives 92/100 and 2006/115. Section 97(1) of the Act of 2000 is not compatible with Article 8(2) of Directive 92/100 and of Directive 2006/115 in so far as it provides that there can be no right to equitable remuneration for the communication of phonograms which takes place in the bedrooms of Irish hotels and guesthouses, as part of their service, on radios, televisions and sound systems.

42. The applicant in the main proceedings has brought an action against the Irish State in which it seeks a declaration, first of all, that in adopting section 97(1) of the Act of 2000, the Irish State has failed to fulfil its obligation to transpose Article 8(2) of Directive 92/100 and of Directive 2006/115 and Article 10 EC. Secondly, it seeks compensation for damage which it has suffered as a result."

That's the easy bit.  The issues are clear but the questions have to be converted into something more precise, but sadly far less intelligible:

"(i) Is a hotel operator which provides in guest bedrooms televisions and/or radios to which it distributes a broadcast signal a ‘user’ making a ‘communication to the public’ of a phonogram which may be played in a broadcast for the purposes of Article 8(2) of Directive 2006/115?

(ii) If the answer to paragraph (i) is in the affirmative, does Article 8(2) of Directive 2006/115 oblige Member States to provide a right to payment of equitable remuneration from the hotel operator in addition to equitable remuneration from the broadcaster for the playing of the phonogram?

(iii) If the answer to paragraph (i) is in the affirmative, does Article 10 of Directive 2006/115 permit Member States to exempt hotel operators from the obligation to pay ‘a single equitable remuneration’ on the grounds of ‘private use’ within the meaning of Article 10(1)(a) of Directive 2006/115?

(iv) Is a hotel operator which provides in a guest bedroom apparatus (other than a television or radio) and phonograms in physical or digital form which may be played on or heard from such apparatus a ‘user’ making a ‘communication to the public’ of the phonograms within the meaning of Article 8(2) of Directive 2006/115?

(v) If the answer to paragraph (iv) is in the affirmative, does Article 10 of Directive 2006/115 permit Member States to exempt hotel operators from the obligation to pay ‘a single equitable remuneration’ on the grounds of ‘private use’ within the meaning of Article 10(1)(a) of Directive 2006/115?"

For to make things a little easier for the ECJ, the referring court specified that the proceedings before it did not concern the public areas of hotels and guesthouses, but only hotel and guesthouse bedrooms and that, to the relief of us all, they did not concern any interactive or on-demand transmissions".
The Advocate General advised the ECJ to tell the referring court that

"(1) Article 8(2) of Directive 2006/115 ... and of Council Directive 92/100 ...[means] that a hotel or guesthouse operator which provides televisions and/or radios in bedrooms to which it distributes a broadcast signal uses the phonograms played in the broadcasts for indirect communication to the public.

(2) In such a case, the Member States are required, in transposing Directives 2006/115 and 92/100, to provide for a right to equitable remuneration vis-à-vis the hotel or guesthouse operator even if the radio and television broadcasters have already paid equitable remuneration for the use of the phonograms in their broadcasts.

(3) Article 8(2) of Directive 2006/115 and of Directive 92/100 [mean] that a hotel operator which provides its customers, in their bedrooms, with players for phonograms other than a television or radio and the related phonograms in physical or digital form which may be played on or heard from such apparatus uses those phonograms for communication to the public.

(4) Article 10(1)(a) of Directive 2006/115 and of Directive 92/100 is to be interpreted to the effect that a hotel or a guesthouse operator which uses a phonogram for communication to the public does not make private use of it and an exception to the right to equitable remuneration under Article 8(2) of Directive 2006/115 is not possible even if the use by the customer in his bedroom has private character".

There's a lot to read in this Opinion and this Kat hasn't had time to digest it yet.  One thing that did catch his eye, though, was the sheer breadth of the concept of communication to the public as viewed through the lens of "making accessible" (see extract below, with emphases added). He wonders whether, at the point at which the legislation was drafted, its originators would have assumed that the concept ran so widely:

"164. Recital 27 in the preamble to Directive 2001/29 does not preclude the existence of communication in a case like the present one, however. It must be construed as meaning that persons providing players, without at the same time controlling access to copyright works, do not make any communication to the public. This is the case, for example, where televisions or radios are sold or rented or where an internet service provider merely provides access to the internet. In a case like the present one, however, the hotel operator does not simply provide the players. Instead, it also deliberately provides hotel customers with phonograms, and thus provides hotel customers with direct access to the sounds fixed in the phonograms.

165. It can be stated, in conclusion, that a hotel operator which provides its customers with not only players, but also the relevant phonograms, makes the copyright works embodied in phonograms accessible and makes the phonograms audible, with the result that there is communication to the public both within the meaning of Article 3(1) of Directive 2001/29 and within the meaning of Article 8(2) of Directive 2006/115".

For the record, the Opinion in Case C‑135/10 SCF Consorzio Fonografici contre Marco Del Corso, kindly translated into English by Lord Justice Google and slightly tickled up by the IPKat, goes like this:

"1. Article 8(2) of Council Directive 92/100 ... or Directive 2006/115 ... must be interpreted the sense that a dentist who places a radio in his waiting room and, through it, making a radio show heard by his patients, is required to pay fair compensation for indirect communication public of phonograms used in the radio.

2. On the basis of the criteria of EU law, neither Article 12 of the Convention on the Protection of Performers, Producers of Phonograms and Broadcasting Organizations [Rome 1961] nor Article 15 of the WIPO Performances and Phonograms Treaty, nor Article 14 of [TRIPS] are the provisions of international law that a party may invoke directly as part of a dispute between individuals".