Czech Court Asks CJEU: Is Teritorrial Monopoly of Collecting Societies Compatible with Free Movement of Services?
1. Must 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 be interpreted as meaning that an exception disallowing remuneration to authors for the communication of their work by television or radio transmission by means of television or radio receivers to patients in rooms in a spa establishment which is a business is contrary to Articles 3 and 5 (Article 5(2)(e), (3)(b) and (5))?
2. Is the content of those provisions of the directive concerning the above use of a work unconditional enough and sufficiently precise for copyright collecting societies to be able to rely on them before the national courts in a dispute between individuals, if the State has not transposed the directive correctly in national law?
3. Must Article 56 et seq. and Article 102 of the Treaty on the Functioning of the European Union (or as the case may be Article 16 of Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market) be interpreted as precluding the application of rules of national law which reserve the exercise of collective management of copyright in the territory of the State to only a single (monopoly) copyright collecting society and thereby do not allow recipients of services a free choice of a collecting society from another State of the European Union?
[CZ] § 38e Licence pro sociální zařízení
Do práva autorského nezasahuje také poskytovatel zdravotních služeb nebo sociální zařízení, kteří nebyli zřízeni nebo založeni zdravotnické nebo sociální zařízení, které nebylo zřízeno nebo založeno za účelem dosažení zisku, zejména nemocnice a věznice, které zhotoví záznam vysílaných děl a takto zaznamenaná díla provozuje osobám umístěným v těchto zařízeních v rozsahu odpovídajícím účelu této licence. ..
[EN] Section 38e Licences for Social Facilities
Copyright is not infringed by a health-care or social institution that was founded or established for noncommercial purposes, particularly hospitals and prisons, which make reproductions of broadcasted works and perform such reproduced works to the persons located in such institutions to the extent adequate to the purpose of this licence. ..
Update 1. Very kind reader, Martin Prokeš, says that problem in the pending case is of different nature than interpretation of Section 38e. He says:
Dear Hutko, it is not about § 38e, but about third sentence in § 23 of czech copyright act. The basic question is, if two hospitalized persons can be considered as a public. I dont think so (see german judicature “Zweibettzimmer im Krankenhaus”). Patients stay in spa around 21 days in average (statistically), hotel guests stay around 2-3 days.
If we consult Section 23, it makes it more clear where is the problem.
Performing the broadcast of a work shall mean that the work broadcast by radio or television is made available by means of a facility technically capable to receive such broadcasts. Making the work available by means of facilities technically capable to receive broadcasts to guests accommodated within the provision of accommodation services shall not be considered, under Article 18 Paragraph (3), as performance of broadcast reception where such facilities are located in the rooms intended for private use by the accommodated persons. Making the work so available to patients to whom health care is provided in health care and medical facilities shall also not be considered, within the meaning of Article 18 Paragraph 3, as performance of a broadcast work.
But even now, the second filed question does not make much of sense (see below). Even if the CJEU would say that commercial spas definitely shouldn’t be exempted from the ‘communication to the public right’, solution for the national court is the same. Do teleological reduction forced by indirect effect of the directive and thus exclude the spas from the notion of the ‘health care facility’. Even if we apply (IMHO super-confusing) test applied in SCF Consorzio Fonografici C-135/10 or Football Association Premier League C-403/08, SGAE C-306/05 and Phonographic Performance v Ireland C-162/10, I don’t see much of exit for the commercial spas from the scope of the right. This because the communication of the works to the spa guests is:
i) a conscious decision of the spa operator (§ 82, SCF Consorzio Fonografici C-135/10),
ii) even one or two-bedroom apartment guests of spa constitute at least a subsequent public (§ 84-87, SCF Consorzio Fonografici C-135/10, Mediakabel C-89/04, SGAE C-306/05), and
iii) a spa business operator has a financial benefit from the music that is being communicated (§ 204, Football Association Premier League C-403/08, § 88-90 SCF Consorzio Fonografici C-135/10).
Update 2. Reader Martin explains in the comments further context of the decision of the Czech court.
On the second question; Here I am even more curious. It is well established case law that where proceedings between individuals are concerned, the CJEU has consistently held that a directive cannot of itself impose obligations on an individual and cannot therefore be relied on as such against an individual [see, inter alia, Case 152/84 Marshall, paragraph 48; Case C‑91/92 Faccini Dori, paragraph 20; and Pfeiffer and Others, paragraph 108, Case C-555/07, Seda Kücükdeveci, paragraph 46]. After Seda Kücukdeveci the court has basically two options when dealing with the Union non-conform legislation.
- it can either try to interpret national law as much as possible in the light of Union law (indirect effect of the Union law) or
- refuse to apply if faced with a national provision falling within the scope of European Union law which it considers to be incompatible with that principle, and which cannot be interpreted in conformity with that principle. It must decline to apply that provision, without being either compelled to make or prevented from making a reference to the Court for a preliminary ruling before doing so.
In November 2011, the Czech Constitutional Court, in its ruling II. ÚS 1658/11, canceled decision of the City Court in Prague and referred it back (due to breach of a right to statutory judge), arguing that the court failed to ask the Court of Justice of European Union on issue of whether Czech Copyright Act, which sets out certain limits to operation of collective societies is compatible with free movement of services. The Constitutional Court specifically questioned whether monopoly of collective societies [in CzechR, one type of right can be administered by one subject only – § 98(6)(c)] and necessity to obtain authorization from the Czech Ministry, is still compatible with Art. 56 TFEU and/or Art. 14 and Art. 16 of Directive 2006/123/EC on services in the internal market.
The Constitutional Court mentioned that it is questionable whether Directive 2006/123/EC applies to the relationship between collective society and user of the work, and if so, the current wording of the Copyright Act might be in breach of following provision of Art. 16.[..]
The Constitutional Court also briefly discussed possibility of applying competition law, Art. 101 and Art. 102 TFEU, pointing to recent decision in Football Association Premier League C-403/08 and Karen Murphy C-429/08. Lets see what is now going to happen on City Court in Prague.