OSA — Ochranný svaz autorský pro práva k dílům hudebním o.s. v Léčebné lázně Mariánské Lázně a.s.

• Jurisdiction: European Union
• Celex Number: 62012CJ0351
• ECLI: ECLI:EU:C:2014:110
• Docket Number: C‑351/12
• Date: 27 February 2014
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling

JUDGMENT OF THE COURT (Fourth Chamber)

27 February 2014 ( *1 )

‛Directive 2001/29/EC — Copyright and related rights in the information society — Definition of ‘communication to the public’ — Transmission of works in a spa establishment — Direct effect of the provisions of the directive — Articles 56 TFEU and 102 TFEU — Directive 2006/123/EC — Freedom to provide services — Competition — Exclusive right of collective management of copyright’

In Case C‑351/12,

REQUEST for a preliminary ruling under Article 267 TFEU from the Krajský soud v Plzni (Czech Republic), made by decision of 10 April 2012, received at the Court on 24 July 2012, in the proceedings

OSA – Ochranný svaz autorský pro práva k dílům hudebním o.s.

v

Léčebné lázně Mariánské Lázně a.s.,

THE COURT (Fourth Chamber),

composed of L. Bay Larsen, President of the Chamber, K. Lenaerts, Vice-President of the Court, acting as a Judge of the Fourth Chamber, M. Safjan, J. Malenovský and A. Prechal (Rapporteur), Judges,

Advocate General: E. Sharpston,

Registrar: M. Aleksejev, Administrator,

having regard to the written procedure and further to the hearing on 26 June 2013,

after considering the observations submitted on behalf of:

— OSA – Ochranný svaz autorský pro práva k dílům hudebním o.s., by A. Klech and P. Vojíř, advokáti, and by T. Matějičný, acting as Agent,

— Léčebné lázně Mariánské Lázně a.s., by R. Šup, advokát,

— the Czech Government, by M. Smolek and J. Vláčil, acting as Agents,

— the German Government, by T. Henze and J. Kemper, acting as Agents,

— the Hungarian Government, by M.Z. Fehér and K. Szíjjártó, acting as Agents,

— the Austrian Government, by A. Posch, acting as Agent,

— the Polish Government, by B. Majczyna, M. Drwięcki, D. Lutostańska and M. Szpunar, acting as Agents,

— the European Commission, by P. Ondrůšek, I.V. Rogalski and J. Samnadda, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 14 November 2013,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of Articles 3 and 5 of 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 (OJ 2001 L 167, p. 10), of 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 (OJ 2006 L 376, p. 36), and Articles 56 TFEU and 102 TFEU.

2 The request has been made in proceedings between OSA – Ochranný svaz autorský pro práva k dílům hudebním o.s. (‘OSA’), a musical works copyright collecting society, and Léčebné lázně Mariánské Lázně a.s. (‘Léčebné lázně’), a company managing a non-State health establishment providing spa treatment services, concerning the payment of copyright licence fees for the making available of works transmitted by radio or television in its bedrooms.

Legal context

European Union law

3 Recital 23 in the preamble to Directive 2001/29 states: ‘This Directive should harmonise further the author’s right of communication to the public. This right should be understood in a broad sense covering all communication to the public not present at the place where the communication originates. This right should cover any such transmission or retransmission of a work to the public by wire or wireless means, including broadcasting. This right should not cover any other acts.’

4 Article 3 of Directive 2001/29, entitled ‘Right of communication to the public of works and right of making available to the public other subject-matter’, provides in paragraph 1: ‘Member States shall provide authors with the exclusive right to authorise or prohibit any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them.’

5 Article 5 of Directive 2001/29, entitled ‘Exceptions and limitations’, provides: ‘... 2. Member States may provide for exceptions or limitations to the reproduction right provided for in Article 2 [entitled “Reproduction right”] in the following cases: ... (e) in respect of reproductions of broadcasts made by social institutions pursuing non-commercial purposes, such as hospitals or prisons, on condition that the rightholders receive fair compensation. 3. Member States may provide for exceptions or limitations to the rights provided for in Articles 2 and 3 in the following cases: ... (b) uses, for the benefit of people with a disability, which are directly related to the disability and of a non-commercial nature, to the extent required by the specific disability; ... 5. The exceptions and limitations provided for in [paragraphs 2 and 3] shall only be applied in certain special cases which do not conflict with a normal exploitation of the work or other subject-matter and do not unreasonably prejudice the legitimate interests of the rightholder.’

6 Article 4 of Directive 2006/123, entitled ‘Definitions’, provides: ‘For the purposes of this Directive, the following definitions shall apply: (1) “service” means any self-employed economic activity, normally provided for remuneration, as referred to in Article [57 TFEU]; ...’

7 Article 16 of Directive 2006/123, entitled ‘Freedom to provide services’, provides in paragraph 1: ‘Member States shall respect the right of providers to provide services in a Member State other than that in which they are established. ...’

8 Under Article 17 of Directive 2006/123, entitled ‘Additional derogations from the freedom to provide services’: ‘Article 16 shall not apply to: ... (11) copyright [and] neighbouring rights ...’.

Czech law

9 Under Paragraph 23 of Law No 121/2000 on Copyright (‘the Copyright Law’), as in force during the period in question, the radio or television broadcasting of a work means making a work transmitted by radio or television available by means of devices technically suitable for receiving a radio or television transmission. However, it does not include making a work available to patients when providing health care to them in establishments which provide such services.

10 Article 98 of the Copyright Law makes the collective management of copyright subject to the grant of an authorisation. Under paragraph 6(c) of that article, the relevant ministry may grant such an authorisation only if no other person already has such an authorisation for the exercise of the same right in relation to the same subject-matter and, in so far as a work is concerned, for the exercise of the same right in relation to the same kind of work.

The dispute in the main proceedings and the questions referred for a preliminary ruling

11 OSA claims from Léčebné lázně the payment of 546995 Czech crowns (CZK), together with late-payment interest, for having installed radio and television sets in the bedrooms of its spa establishments during the period in question (1 May 2008 to 31 December 2009), through which it made works managed by OSA available to its patients, without entering into a licence agreement with OSA. According to OSA, Article 23 of the Copyright law, in so far as it provides for an exemption from the payment of copyright fees for health care establishments when providing health care, is contrary to Directive 2001/29.

12 Léčebné lázně maintains that it is covered by the exception referred to in Article 23 of the Copyright law and contests the assertion that the provision in question is contrary to Directive 2001/29. It adds that if, however, it were found that the provision in question is indeed contrary to Directive 2001/29, that directive cannot be invoked in a dispute between individuals.

13 Furthermore, Léčebné lázně claims that OSA is abusing its monopoly position in the market, since the amount of the fees set out in its fee scales is disproportionately high in comparison with the fees demanded by the copyright collecting societies (‘the collecting societies’) in neighbouring countries for the same kind of use of copyright-protected works, which undermines its position in the market and its ability to compete with spa establishments in neighbouring countries. The clientele of its spa establishment is international, and foreign radio and television signals are received there. It claims that its freedom to provide services is restricted and that it would be in its interest to conclude a licence agreement with a collecting society which demands lower copyright fees established in another Member State.

14 In those circumstances, the Krajský soud v Plzni (Plzeň Regional Court) decided to stay proceedings and refer the following questions to the Court for a preliminary ruling: ‘1. Must Directive 2001/29 … 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 [and, in particular] 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 … collecting societies to be able to rely on them...