Ochranny svaz autorsky—Spas face the music and will pay for it

Ochranny svaz autorsky—Spas face the music and will pay for it

What was the factual background to this claim?

Since time began, or so it seems, there have been disputes about paying royalties in respect of music works or television played in planes, trains and automobiles hotel rooms, pubs, dentists’ practices and now spas.

In this referral from the Czech Republic to the CJEU, OSA, a musical works copyright collecting society, claimed copyright licence fees for the making available of works transmitted by radio or television, in this case in the bedrooms of the spa. Under Czech law, there was an exemption for works made available to patients, when providing health care to them in establishments that provide those services.

What was the legal nub of the case?

Very simply, the case was about whether giving spa ‘patients’ access to broadcast works via television or radio sets by distributing in the patient’s rooms the signal carrying the protected works, was a communication to the public within the InfoSoc Directive, art 3(1). A second question broached whether national law in the form of the exemption from payment of fees under Czech law could be set aside, in a dispute between individuals, as contrary to the InfoSoc Directive, art 3(1). A third question addressing competition law issues—application of the Treaty on the Functioning of the European Union, art 102 (TFEU)—is not dealt with in this analysis.

What did the CJEU rule?

In terms of communication to the public within the meaning of the InfoSoc Directive, art 3(1), the CJEU neatly set out its thinking:

  1. the concept of ‘communication’ was to be construed as referring to any transmission of the protected works, irrespective of the technical means or process used
  2. the operator of a spa carries out a communication when it deliberately transmits protected works, by intentionally distributing a signal through television or radio sets, in the rooms of the patients of that establishment
  3. the term ‘public’ in the InfoSoc Directive, art 3(1) refers to an indeterminate number of potential recipients and implies, moreover, a fairly large number

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