Holiday lets copyright risk for landlords arises from EU opinion

In an opinion issued in a case that has been referred to the Court of Justice of the EU (CJEU), advocate general Maciej Szpunar said he believes EU copyright law does provide a right for copyright owners to authorise or prohibit the communication to the public of their works in cases where operators of rental apartment buildings install TV sets with indoor antennas able to receive TV broadcasts, so long as the apartment is not the tenants’ principal or secondary residence.

The issue has been referred to the CJEU for its consideration by a local court in Potsdam, Germany. Before the Potsdam court, GEMA, a collective rights body in the music industry, has accused an operator of an apartment building of copyright infringement on the basis that the operator provides television sets with indoor antennas able to receive broadcasts without its permission. The Potsdam court is seeking the CJEU’s help in interpreting how EU copyright law applies in the context of the provision of TVs in rented accommodation, to be able to resolve the dispute before it.

Szpunar’s opinion is non-binding on the CJEU, which will issue its formal judgment on the matter in the months ahead. The CJEU judges often follow the opinions of the advocates general of the court, however.

Alexander Bibi of Pinsent Masons said it is the latest in a long line of cases to come before the CJEU where it has been asked to examine the scope of the concept of ‘communication to the public’ under EU copyright laws.

Under EU copyright laws, the authors of copyrighted works have the exclusive right to control the "communication to the public of their works" and "the making available to the public" of their works. It is generally an infringement of those rights if others communicate or make available content without permission from rights holders to do so.

EU case law has established that, to be said to have communicated copyrighted works to the public, businesses must be shown to have communicated them to a 'new public'. That term means a different audience from the one that rights holders originally directed their material at when making their copyrighted content available.

In his opinion, Szpunar referred to some of the CJEU’s previous case law relating to the concept of ‘communication to the public’.

Szpunar considered, among other things, that the situation of an apartment operator installing TVs that can receive broadcasts via an indoor antenna is somewhat analogous to hotel operators installing a central antenna so that hotel guests can view broadcasts on TVs in the hotel. In this regard, he cited the fact that the CJEU has already established that such an act by hotel operators does involve a communication of copyrighted works to a new public.

Bibi said that Szpunar had acknowledged that there is a difference between hotel operators installing a central antenna to enable TVs in the hotel to receive broadcasts and landlords equipping apartments with TVs that have their own indoor antennas. However, he highlighted that Szpunar had referred to the technological neutrality of copyright law and considered that the acts of the landlords could nevertheless constitute a communication to the public, notwithstanding that there was no deliberate transmission of the broadcasts in the way the CJEU had found in the hotel operator case.

Having considered that there is a communication to the public, Szpunar examined whether the communication is to a ‘new public’ and not a public that the copyright holders accepted they would reach when initially authorising the broadcast of their works.

In this regard, Szpunar considered that a distinction should be drawn between tenants who use the apartment as their primary or secondary residence, and those that only “occupy the apartments for relatively short periods and quickly succeed each other”.

Tenants who establish their principal or secondary residence at the apartment should be considered to own the equipment that receives the broadcasts and “enjoy the protected works within their own private or family circles”, Szpunar said. He said it is “irrelevant whether the receiver was provided to them by the owner or operator of the apartment as part of the rental” because even if such a receiver was provided it would be classed as “the mere provision of physical facilities and does not give rise to additional authorisation”.

However, where tenants take residence in “aparthotels or holiday lets”, the position is different as those tenants can be “regarded as persons who, although within the catchment area of the television broadcast, would be unable to receive that broadcast without the intervention of the operator of the apartment building who gives them access to it by installing television with indoor antennas in those apartments”. Therefore, those tenants would fall into the category of a ‘new public’, according to Szpunar.

Bibi said: “Szpunar’s opinion is a very interesting interpretation that fits to the teleological and economic goals of EU copyright law and with how the CJEU has previously considered an act of communication to the public should be determined in cases involving online platforms. This could provide for a more universal interpretation of the right of rights holders to control how their works are communicated. However, Szpunar’s interpretation has some downsides as well.”

“The main risk is that there wouldn’t be hard criteria to determine whether there is a new communication to the public or not – the concepts of ‘private circles’ or ‘family circles’ are difficult to define. So, while tourists renting apartments would clearly not be in a ‘private circle’, the position may not be so clear-cut in other cases,” he said.

“For example, we have already seen in various cases in Germany where higher regional courts have handed down different decisions upon the question if there are ‘private circles’ between the residents in retirement homes. Currently, the Federal Court of Justice in Germany has tended to resolve those cases with reference to hard technological criteria – whether there has been a central transmission of the signal or not – but if the CJEU follows the opinion by Szpunar, this has the potential to expand the right of communication to the public beyond that existing interpretation by the Federal Court of Justice in Germany,” he said.