C-293/98

EGEDA

OPINION OF ADVOCATE GENERAL LA P E R G O L A delivered o n 9 S e p t e m b e r 1999 *

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whereby a work is made accessible to more public, by any appropriate means (Artic- than one person without previous trans- le 20(2) (g)). For the purposes of the main mission of examples of that work to them, action, cable transmission (Article 20(2)(e); unless the communication is of a private footnote 2 above) should be included nature because it has taken place within a among the means of retransmission refer- strictly domestic context that does not form red to in Article 20(2)(f) of the Consoli- part of, and is not connected with, a dated law. retransmission network of any kind. Arti- cle 122 — which comes under Book II(III) (on intellectual property rights other than copyright) of the Consolidated law — states that the right to authorise commu- nication to the public of audio-visual recordings lies with the producer. Further- more, the users of audio-visual recordings 3. The order making the reference shows used in acts of communication to the public that the Spanish legislator has literally mentioned in Article 20(2)(f) and (g) of this transposed into the Consolidated law 3the Law (see below) must pay a fair one-off fee definitions of 'communication to the public to the producers of those recordings and to by satellite' and 'cable retransmission' the artists that interpreted or performed given in Article l(2)(a) and (3) of Council them. Intellectual property right manage- Directive 93/83/EEC of 27 September 1993 ment bodies are entitled to exercise the on the coordination of certain rules con- right to this remuneration (Article 122(3) cerning copyright and rights related to of the Consolidated law). copyright applicable to satellite broadcast- ing and cable retransmission (hereinafter 'the Directive'). 4Article 1 of the Directive states in the section that is relevant to this Opinion:

'Is Article 1(2)(a) and (3) of Directive 93/83/EEC to be interpreted as meaning that reception by a hotel establishment of satellite or terrestrial television signals and their cable retransmission to the various rooms of that hotel constitutes an "act of communication to the public" or "recep- tion by the public"?'''

3. For the purposes of this Directive, "cable retransmission" means the simultaneous, unaltered and unabridged retransmission by a cable or microwave system for recep- 5. To conclude that description of the legal tion by the public of an initial transmission background to the main action, I would from another Member State, by wire or point out that in accordance with Protocol over the air, including that by satellite, of 28(5) on Intellectual Property in the Eur- television or radio programmes intended opean Economic Area (hereinafter 'Proto- for reception by the public' (my italics). col 28'), 6 Spain, like all other Member States, was required to adhere to the Berne Convention for the Protection of Literary and Artistic Works (Paris Act of 24 July 1971 as amended on 28 September 1979; hereinafter 'the Convention') by 1 January 1995 and to ensure that its national 4. Consequently, it is the view of the legislation conformed to the substantive referring court that if the service HOASA provides to its clients were to be described as the retransmission of broadcast works, 5 — The reference in the question referred for a preliminary ruling to the term 'reception hy the public' becomes clear if the defendant — as the user of audio-visual we refer to the Spanish version of Article 1(3) of the Directive ('... la retransmisión por medio de cable o recordings used for the acts of communica- nucoroondas para su recepción por el público, de enlistones tion to the public mentioned in Arti- primarias desde otro Estada miembro...') or, for example, to the French version, ('retransmission... pour la réception luil- cle 20(2)(f) and (g) of the Consolidated le public') and the English version ('retransmission ... for law — would have to pay to EGEDA, reception by the public'). It has been translated into Italian as 'ritrasmissione ... destinata al puhhlico' (my emphasis). which acts in the name and on behalf of the 6 — OJ 1994 L 1, p. 194.

provisions of the Convention by 1 January sation (hereinafter the 'WTO Agreement'), 1994. 7 approved on behalf of the Community, in respect of those areas for which it has jurisdiction, by Council Decision 94/800/ EC of 22 December 1994. 9The main aim of the TRIPS Agreement is to strengthen and harmonise the protection of intellectual property internationally. For this purpose it not only refers to international agreements 6. Article 11 bis(l) of the Convention — already widely accepted 10 but includes also concerning (inter alia) the communication substantive provisions that refer specifically to the public of a work broadcast by wire to those areas of intellectual property that (cable transmission) or rebroadcast (by the contracting parties believed were in loudspeaker or analogous instruments) — greatest immediate need of protection. states that 'Authors of literary and artistic Article 9 of the TRIPS Agreement — in works shall enjoy the exclusive right of authorising: .

7. Like the other substantive provisions of 1996 at the latest. I would point out that the W T O Agreement was concluded by the Community and ratified the Convention (with the sole exception of by its Member States, without their respective obligations Article 6bis which concerns the author's towards the other contracting parties being apportioned among them. In accordance with the principle of joint moral rights), Article llbis is deemed to be competence, as supported by Opinion 1/94 of 15 November 1994 on the 'Competence of the Community to conclude an integral part of the Agreement on Trade- international agreements concerning services and the pro- Related Aspects of Intellectual Property tection of intellectual property' (issued pursuant to Arti- cle 2 2 8 of the EC T r e a t y ( n o w Article 3 0 0 E C ) , Rights (hereinafter the 'TRIPS Agree- subparagraph 6; [19941 ECR I-5267, paragraphs 54 to 71 ana 102 to 105), both the Community and its Member ment') 8 that forms Annex 1C to the Agree- States have adhered to the TRIPS Agreement.

1995. All the Member States have adhered to the Conven- the exclusive competence of the Member States because the tion (140 countries have so to date) and particularly to the Community was certainly competent to harmonise national version adopted under the Paris Act; only Belgium and rules on those matters, in so far as they 'affect the Ireland still apply the previous Brussels version (26 June establishment or functioning of the common marker. 1948). The Commission has therefore informed the Court that it has commenced proceedings against these two 10 — In addition to the Berne Convention, see also the Paris Member States under Article 169 of the EC Treaty (now Convention for the Protection of Industrial Property Article 226 EC). (Stockholm Act 14 July 1967, as amended on 2 October 8 — OJ 1994 L 336, p. 213. 1979).

II — The arguments of the parties and the observations submitted to the Court by the Member States who have 'intervened' and by the Commission 10. HOASA argues that the service it provided to the hotel clients does not fall under either of the two definitions given in this reference for a preliminary ruling. The 8. In the observations submitted to the defendant claims that it is unclear how the Court, EGEDA asserted, primarily, that Directive's regulation of communication to the reference for a preliminary ruling is the public via satellite, can apply to a inadmissible. In particular, the case does completely different area, such as the mere not involve transborder satellite broadcasts reception and internal retransmission of or the cable retransmission of programmes signals broadcast by third parties. From that originated in other Member States. when the television signals are received by Since there is therefore no connection the satellite dish until the moment they are between the parties to the case and Com- received in the hotel rooms there is no munity law, no reference to the latter can interruption whatever of transmission. Fur- be made. 11 Moreover, EGEDA claims that thermore, as regards the term 'reception by the facts of the case do not fall within the the public' as used in Article 1(3) of the scope of the Directive and consequently the D i r e c t i v e , the reference — in Arti- main action must be decided on the basis of cle 8(1) 1 3— to cable operators as normal national law alone. In the alternative, it or necessary parties to licencing agreements requests the Court to declare that activities together with rights holders shows that the of the kind involved in this dispute con- cable retransmission of programmes from stitute an act of public communication as other Member States, as provided for and defined in the Directive.

11. The Spanish Government shares that 12. Finally, the Commission denies that view and states that the main purpose of there is 'communication to the public by the Community legislature in adopting the satellite' within the meaning of Arti- Directive was to remove existing discre- cle 1(2)(a) of the Directive in this case. It pancies between national copyright laws maintains that —· n o t w i t h s t a n d i n g the which expose rights holders 'to the threat basic principle of the Directive (see below, of seeing their works exploited without paragraph 14) — the retransmission to the payment of remuneration' (recital 5). While hotel rooms of the television programmes the provision of transborder television in question after their satellite reception programmes — like other additional ser- involves interruption of the flow of com- vices, such as telephone, fax, minibar or an munication. However, the supply of this individual bathroom — by a hotel can service by the defendant could fall within affect the price at which it rents its rooms, the scope of Article 1(3) of the Directive if companies like the defendant do not engage the reception of transborder television in the independent financial exploitation of p r o g r a m m e s and their internal cable copyright for profit. Moreover, the hotel's retransmission by a hotel constitutes recep- clients are still part of the public, which is tion by the public. According to the Com- entitled to receive the television transmis- mission, it is the Court's duty to ensure that sion of the protected work if it has been this provision is uniformly implemented duly authorised by the copyright holders. throughout the Community on the basis of The latter will therefore have already its own interpretation, in order to prevent received all the remuneration to which they undue distortion in the free provision of are respectively entitled, the figure prob- services and in free competition within the ably having been calculated on the basis of single market. The Commission asserts that the number of potential viewers of the the provisions of the Convention, which

contains numerous references to the term cable retransmission by a hotel to rooms 'communication to the public', have occupied by its clients of television signals formed an integral part of Community received either by satellite or by cable law since the Agreement on the European constitutes not the ordinary reception of Economic Area (hereinafter the 'EEA programmes but an independent act of Agreement') came into force. This is retransmission to the public, as a result of because Article 5 of Protocol 28 states that which a protected work is transmitted to a Spain and the other Member States under- new public and therefore requires separate take to ensure that the Convention is authorisation by the rights holders. implemented correctly. At the same time, the Commission has also referred to the case-law to the effect that primary and secondary Community legislation must be interpreted in the light of international public law. The Directive should therefore be interpreted in the light of the substantive provisions of the Convention, even though this may not yet have been 'communitar- ised'. The Commission considers that the uniform interpretation that the Court is III— Legal analysis asked to give in this case must be based on the term 'communication to the public of a received broadcast programme' as this is described in the Glossary of Terms of the Law of Copyright and Neighbouring Rights 14 and in the Guide to the Berne Convention, 15 published by the World Intellectual Property Organisation (WIPO; 13. I shall commence by examining the hereinafter the 'Glossary' and the 'Guide' foundation for the Commission's asser- respectively). Clients using the televisions tions. The latter relies on both Article 5 of in hotel bedrooms constitute a different Protocol 28 and the case-law of the Court public from that (the hotel) originally concerning the duty to interpret secondary considered by the author at the time the Community law in the light of interna- broadcast of the protected work was tional law in suggesting that the Court authorised. Consequently the answer to should interpret the provisions of the the question referred should be that — Directive mentioned by the referring under Article 1(3) of the Directive, inter- court— in particular Article 1(3)— so preted in the light of the Convention — the that they conform as closely as possible to the relevant substantive provisions of the Convention (see paragraph 12 above). The fact that the Convention is not mentioned in the order for reference clearly does not prevent the following analysis. According 14 — G. Boytha, WIPO Glossary of Terms of the Law of to the settled case-law of the Court, when Copyright and Neighbouring Rights — OMPI Glossaire giving a preliminary ruling under Arti- du droit d'auteur et des droits voisins — OMPI Glosario de derecho de autor y derechos connexos, Geneva, 1980. cle 177 of the EC Treaty the Court may 15 — C. Masouyé, Guide de la Convention de Berne pour la consider provisions of Community law — protection des œuvres littéraires et artistiques (Acte de Paris, 1971), Geneva, 1978. which may have been brought to its

14. The Directive was adopted on the basis of Article 57 of the EC Treaty (now, after amendment, Article 47 EC), paragraph 2, and Article 66 of the EC Treaty (now It should also be remembered that Arti- Article 55 EC) and aims to remove obsta- cle 1(2)(a) — as indicated in sub-paragraph cles to the free movement of television (b) and recital 14 of the Directive — is programmes within the Community so far intended essentially to prevent the cumula- as copyright is concerned. As the preamble tive application of two or more sets of to the Directive makes clear, the Commu- national legislation to a single act of nity legislator merely set minimum require- satellite broadcasting of copyright-pro- ments which the Commission and the tected works. In order to remove the legal European Parliament originally intended uncertainties surrounding the rights that should be included within the scope of the would need to be acquired and the resulting 'Television without Frontiers' Directive. 18 obstacles to the transnational transmission Adoption of the Directive, furthermore, of programmes, the Council therefore does not prejudice 'further harmonisation defined the term satellite communication in the field of copyright and rights related to the public within the Community. 19 Since the act of communication is deemed to have taken place in the Member State of 16 — S e e , inter alia, Case C-280/91 Viessmann [1993] ECR origin, the author will exercise his exclusive I-971, paragraph 15. right to authorise broadcast of the work by 17 — See, inter alia, Joined Cases 73/63 and 74/63 Handelsver- eniging Rotterdam v Minister van Landbouw [1964] ECR contract under the law of that Member 1; Case 70/77 Simmenthal v Amministrazione delle finanze State. 20 The Directive therefore requires dello Stato [1978] ECR 1453; Case 35/85 Procureur de la République v Tissier [1986] ECR 1207; and Case C-114/91 Claeys [1992] ECR I-6559. 18 — Council Directive 89/552/EEC of 3 October 1989 on the co-ordination of certain provisions laid down by law, 19 — As Erdozain López has observed, the connection between regulation or administrative action in Member States an act of satellite broadcasting or communication to the concerning the pursuit of television broadcasting activities public via satellite and a given set of legislation is more a (OJ 1989 L 298, p. 23), as amended by Directive 97/36/ question for public international law than for copyright EC of the European Parliament and of the Council of law in the strict sense (op. cit., footnote 18, pp. 330 and 30 lune 1997 (OJ 1997 L 202, p. 60). The 'Television 331). without Frontiers' Directive was adopted likewise on the 20 — See Articles 1(2)(b), (2) and (3)(1) of the Directive. As a basis of Articles 57(2) and 66 of the EC Treaty. See J.C. consequence of the principle referred to therein, the Erdozain López, Las Retransmisiones por Cable y el Directive has rejected 'Bogsch's theory', according to Concepto de Público en el Derecho de Autor, Pamplona, 1997, p. 3 2 1 . which the broadcasting rights of protected works must be acquired for all receiving countries (see recital 7).

However, a different solution has been 15. As the scope for such co-ordination by adopted in the case of cable retransmission: the Community legislature is of course as the United Kingdom authorities have limited, it is clear why the Directive — observed, the Directive does not in this case which devotes all of Article 1 (Definitions) require the introduction of an analogous to clarification of the meaning of a number exclusive right but assumes that other of fundamental terms used in the rest of the rights exist in national law ('copyright Directive, for the purposes of ensuring the and related rights') which have not been application of its substantive provisions, harmonised or defined, but observance of ('for the purpose of this Directive') — docs which the Member States must ensure not define 'retransmission', 'cable system',

I therefore agree with necessary by the fundamental decision, on which the the applicant and the German, French and Directive is based, to apply only the law of the State in which the broadcaster is established. 'Otherwise there United Kingdom Governments that even if could be. . . "distorted use" of the freedom to provide services: a broadcaster transmitting from a State in which we admit that the main action concerns no authorisation is required for satellite transmission television programmes from other Member because no voluntary licensing system exists would be able to direct its signal to all the other Member States of States, 2 2 the preliminary ruling requested the Community, including those i n which the same transmission may only be authorised by the author.

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by the Juzgado de Primera Instancia e principle cannot apply to international Instrucción n. 5 de Oviedo cannot be given agreements between Member States that on the basis of the Directive. do not bind the Community, as in the case of the Convention. 25

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merely incidentally, 27 to the commitments 18. I find EGED A's arguments more con- given by the Community when it adhered vincing. The applicant claims that the to the TRIPS Agreement. It is the second provisions of the Convention have been argument that convinces me. Article 5 of subsumed into the TRIPS Agreement, Protocol 28 imposes on the Member States although only for such matters as have (and all the EFTA States) 28 an obligation to been legislated on by Community latv at legislate (adherence to the Convention and Community level. 29 Consequently, while adapting national legislation). It is obvious the Community has not formally adhered that only when these obligations are ful- to the Convention (and cannot do so, see filled will the national laws concerned above, footnote 28), it must comply with include current laws that conform with Articles 1 to 21 thereof. In the Hermes case the Convention. This, however, is quite the Court decided that it was competent to different from claiming that the introduc- interpret Article 50 of the TRIPS Agree- tion of these obligations will of itself bring ment. This, you will recall, involved a the Convention into immediate and full provision of the Agreement concerning effect under Community law. 'measures to prevent infringement of any intellectual property right' that, according to the governments who 'intervened' in the

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case, fell within the jurisdiction of the Copyright protection is an area in which Member States. 30 A similar approach the Community has already exercised its would seem to be even more appropriate authority internally. 31 I therefore believe here. It is my belief that a decision in the that there can be no doubt that the Court is main action is dependent upon interpreta- competent to give a preliminary ruling on tion of a substantive provision of the the interpretation of the Convention provi- Convention that has been incorporated sions to which Article 9 of the TRIPS into the TRIPS Agreement through formal Agreement refers. That is not contradicted reference and aims to protect the right of by the fact that Article 11 bis of the Con- communication to the public in the event of vention, incorporated into the TRIPS the secondary use of works originally Agreement through Article 9 of the Agree- broadcast from another Member State. ment itself, applies both to situations

See also Council Directive concerned, so far as this covers national trademarks, since 96/9/EC of 11 March 1996, on the legal protection of the Community is a contracting party to the TRIPS databases (OJ 1996 L 77, p. 20); and the amended draft Agreement which concerns the Community trade mark, directive proposed by the European Parliament and the the courts referred to in Article 99 must apply national law Council on the harmonisation or certain aspects of copy- when issuing provisional measures to protect the rights right and related rights in the information society arising from a Community trade mark and must do so, so (COM(99) 250 def., OJ 1999 C 180, p. 6)).

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regulated by national law and to situations national law in the light of the Convention regulated by Community law. Here too, as referred to in the TRIPS Agreement 33 — 'the Community has a certain interest in the provision in question does establish a ensuring that, in order to prevent future clear and unconditional principle that the differences in interpretation, this provision national court can apply. This would thus is given a uniform interpretation, whatever appear capable of regulating the legal the conditions under which it will be status of individuals 34 provided that the applied'. 32 Court finds nothing to contradict that in its examination of the purpose, nature and

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20. I shall now analyse the question of ment is often used in restaurants, shops and whether, on the basis of the Convention, similar places to attract the public. The the retransmission of broadcast works to right to broadcast and to receive pro- hotel rooms via the televisions located in grammes does not necessarily include the them can be described as a simple act of right to give the public access to the reception or of broadcast (communication programmes. This also applies to pro- to the public). I must point out first that the grammes received via cable.

. . The criteria for distinguishing between this form of communication and the simple reception of 35 — Advocates General Cosmas and Tesauro have different programmes that are not subject to copy- views on the direct effect of the "WTO Charter. The former believes that the provisions of the Charter — particularly those concerning objections and provisions that can be adopted in the event of extraordinary difficulties, together with the settlement of disputes between contracting parties — remain extremely flexible and therefore have no direct effect (Opinion in Case C-183/95 Affish v Rijksdienst [1997] ECR 1-4317, paragraph 119).

This also takes account of the fact that the Court has for some time admitted the direct effect of other agreements signed by the Community which, in terms of flexibility and their negotiated settlement approach to disputes, are essentially analogous to the 36 — S. Ricketson, The Berne Convention for the Protection of W T O Charter (Opinion in Hermès, cited above in footnote Literary and Artistic Works: 1886-1986, London, 1987, 30, paragraphs 26 to 30). p. 140. 37 — Boytha (op. cit., footnote 14), p. 44.

right shall be decided by national legisla- 21. On the basis of the abovementioned tors'. 38 However, under the Convention, observations in the Guide, I believe that the the grant of a television broadcast licence provision that theoretically applies in this to a broadcaster does not cover any other case is not sub-section 2 but the special use of the work — for example, commu- provision in Article 11(1)(3). 4 0 The nication to the public of the transmitted retransmission of the broadcast work to programme via loudspeakers or analogous the hotel guests is made technically possible instruments (in this case via television) — by the fact that the hotel rooms are each by third parties, particularly if this is for equipped with a television set, that is, an

the programme. If reception is for a larger audience, possibly for profit, a new section of the receiving public hears [or sees] the work and the communication of the pro- gramme via a loudspeaker (or analogous instrument) no longer constitutes simple reception of the programme itself but is an 40 — As Erdozain López observes (op. cit., footnote 18, at independent act through which the broad- p. 210), any other interpretation would imply that subparagraph 3 of the rule cited in the text is superfluous, cast work is communicated to a new since communication to the public by loudspeaker or analogous instruments by definition involves a body other

See the judgment of 24 December 1993 of the Netherlands Hoge Raad, Centraal Antennensysteem Pastor Schelstraeteweg v Vereniging BUMA (Eur. Com. Cases, 1995, p. 537, and Revue Internationale du droit d'auteur, 1994, No 162, p. 404), where it was decided that an association of owners or tenants that manages a system for receiving wireless broadcast television programmes which are then retrans- mitted by cable to subscribers falls under the scope ratione personae of Article 11(1)(2) of the Convention, whatever the size of the cable network involved and whatever the nature, purpose or organisation of the management body. 42 — As Erdozain López has observed (op. cit., footnote 18, at p. 419, footnote 185), it would seem nevertheless that the definition of a place with public access in the widest sense can apply if access to hotel rooms by the public is interpreted not in the strict sense (whereby a person has 38 — Masouyé (op. cit., footnote 15), pp. 79 and 80 (my already rented the room and is inside it) but in the wider translation). sense, whereby anyone can at any time occupy the room in 39 — Ibid, (my translation). question and exclude everyone else from it.

(see point 11 above), the cable retransmis- right holders are remunerated on the basis sion of television signals to individual not of the actual enjoyment of the work but television sets is here an act of communica- of a legal possibility of that enjoyment. For tion in a strictly domestic sphere and example, publishers must pay royalties to therefore is reception and not transmission. authors for their novels on the basis of the Furthermore, the increased public criterion number of copies sold, whether or not they to which the Convention, as the Guide are ever read by their purchasers. Similarly, itself says, makes subject any act of public hotels that are responsible for the — communication that must be licensed by simultaneous, uncut and unchanged — the author, is not satisfied here; this is internal cable retransmission of an original because — if the hotel retransmitting the satellite broadcast cannot refuse to pay the signals it receives to the various rooms lies author the remuneration due to him by within the catchment area of the original maintaining that the broadcast work was transmission — the viewers/guests would not actually received by the potential view- in any case have been able to receive the ers who have access to the televisions in original broadcast of the work using recep- tion equipment located in their own homes, their rooms. 44 On the other hand it is all if at the time the hotel was retransmitting too clear — given that such retransmission the work they had been in their homes. is not just a technical means to ensure or Finally, there is no communication to the improve reception of the original broadcast public on the other hand because effective in the catchment area, as in the case, for reception of the broadcast work depends example, of the installation and use of on an act personally performed by the hotel transceivers — that HOASA gave the hotel guest (switching on the television set and guests access to the protected work. If the tuning in to the original broadcaster). 43 defendant had not made secondary use of the broadcasts, the clients — although physically within the satellite catchment area — would not have been able to enjoy the broadcast work in any other way; they therefore constitute, in this sense, a 'new' public that differs from the primary broad- cast public.

23. However, I believe it is also necessary 24. What criterion do I therefore suggest to remove from the analysis an obvious that the Court should adopt in the matter misunderstanding concerning the private before it to distinguish between communi- nature of the retransmission of primary cations that are to the public and those that television broadcasts to hotel rooms. I are not? In my opinion, the Convention certainly do not dispute the fact that, so lays down the principle that the author far as the protection of the personal rights must authorise all secondary use of the guaranteed by the constitutions not only of broadcast work if this gives rise to inde- Member States but also of all democratic pendent economic exploitation for finan- States is concerned, a hotel room forms cial profit by the person responsible 4 7 and part of the purely private or domestic also relates to the economic importance of sphere of a person and his family. Never- the new public (paragraph 22 above), theless, the legal boundary between the which is the group of persons to whom private and the public is not necessarily the the particular act of communication via the same in the area of copyright protection. 4 5 television is addressed. The criterion I have It is no chance that the criterion for indicated gives us, for example, a cogent establishing the public or private nature of explanation for there being no communica- a room is foreign not just to the letter but tion to the public if the protected work is also to the spirit of Article 11 bis of the made accessible by the direct user of the Convention, which requires authorisation television to his family circle or friends: in by the author not for retransmission to such cases there is no secondary use of the places that are public or are open to the broadcast work by a third party but instead public but for acts of communication in which the work is made accessible to the public. For this purpose the term 'public' is not of fundamental importance in defining an act of communication as public, because it traditionally means the absence of special personal relationships between members of a group of persons or between group members and the organiser. 4 6

25. The Spanish authorities have denied that an undertaking in HOASA's position would be seeking. financial profit when making the broadcast works accessible to 26. In this case it is perhaps the second its clients. Its arguments do not convince matter I have raised (paragraph 24) that is me however. Even if there is no extra hardest to prove. It could be argued that charge to guests (in the form of a supple- the economic weight of the guests of a hotel mentary charge or an extra charge included room is so slight that they cannot constitute in the cost of the overall service provided) a 'new' public that differs from the primary for the internal retransmission service to transmission public. Consequently the rooms, there can be no doubt that this retransmission of the broadcast work by constitutes an economically quantifiable television does not have the economic benefit to the hotel responsible for the importance necessary to constitute an inde- secondary use as a client facility. Further- pendent act of communication. This rigid more, it is common knowledge that the approach appears to be changing, however, inclusion of a cable television retransmis- under the influence of recent national court sion service in the services a hotel offers its rulings that are based on the 'spatial clients, together with the number of chan- accumulation' (räumliche Kumulation) nels available, is one of the normal criteria view. 49 This holds that all the clients in a used to classify hotels by category and thus hotel at a given time constitute the 'public' affects the prices they can charge. 48 Broad- cast third party works therefore undeniably 49 — G. Schricker, Videovorführungen in Hotels in urheber- rechtlicher Sicht in Festschrift für Walter Oppenhoff zum SO. Geburtstag, 1985, p. 367, in particular pp. 370 and 48 — GACM (cited above, footnote 43).

within the meaning and for the purpose of television of an already broadcast work copyright. In other words the 'spatial engage in acts of economic exploitation discontinuity' of the individuals involved, that are different and independent of each who constitute the circle of addressees to other, the bases for the claims advanced by which the work is made accessible by the copyright holders in both cases will also be 51 person responsible for each act of second completely separate. This consequently ary use, is not large enough to negate the overturns the argument that authors cannot economic importance of the new public lawfully claim dual remuneration for 'the reached (if only potentially, in the sense of a same acť of broadcast of a protected work mere legal possibility; see paragraph 22 (paragraph 11 above).

A somewhat different view forms the basis for case-law that interprets the term communication to the public as being related to time, holding that the requirement that the broadcast work must be accessible to more than one person can be met In different guests using the same room at different times ('accumulation over time'; zeitliche Kumulation). As a result, the term 'attendant public' must be replaced by "sequential public': M. Walter, Die Hotel-video-Systeme aus urheberrechtlicher Sicht, in Medien und Recht, 1984, Archiv 9; Spanish Supreme Court, judgment of 11 March 1996, Hotel Blanco don Juan v SGAE (RJ, 1996, 2413) and more recently Juzgado dc Primera Instancia n. 5 dc Santander, judgment 308 of 31 July 1998, EGEDA v

. .in perform or display a work 'publicly' means. . . (2) to transmit or otherwist communicate a performance or display of the work to ¡i place ļopen to the public or at any place where à substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered! or u lhe public, by means of any device or process, whether tin 5 1 — Spanish Supreme Court, judgment of 19 July 1993, SGAE members of the public capable of receiving the perfor- v Olmos Fernaudez (RJ, 1993, 6164), concerning com- mance or display receive it in the same place or in separati munication to the public in a bar of broadcast works.

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Conclusion

28. For the reasons given above, I propose that the Court should answer the question referred for a preliminary ruling by the Juzgado de Primera Instancia e Instrucción n. 5 de Oviedo as follows:

(1) The question of whether the reception by a hotel of protected works broadcast by satellite or terrestrial television signals from another Member State and the subsequent retransmission by cable of the programme signals received to the televisions located in the bedrooms of the same hotel constitutes an act of communication to the public cannot be resolved on the basis of Council Directive 93/83/EEC of 27 September 1993 on the co- ordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission.

(2) The reception by a hotel of protected works broadcast by satellite or terrestrial television signals from another Member State and the subsequent retransmission by cable of the programme signals received to the televisions located in the bedrooms of the same hotel constitutes an act of communica- tion to the public within the meaning of Article 11 bis of the Berne Convention for the Protection of Literary and Artistic Works (Paris Act of 24 July 1971, as amended on 28 September 1979), as referred to by Article 9 of the Agreement on Trade-Related Aspects of Intellectual Property Rights.