Entidad de Gestión de Derechos de los Productores Audiovisuales (Egeda) v Hostelería Asturiana SA (Hoasa).

• Jurisdiction: European Union
• Celex Number: 61998CC0293
• ECLI: ECLI:EU:C:1999:403
• Date: 09 September 1999
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Docket Number: C-293/98

Important legal notice

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61998C0293

Opinion of Mr Advocate General La Pergola delivered on 9 September 1999. - Entidad de Gestión de Derechos de los Productores Audiovisuales (Egeda) v Hostelería Asturiana SA (Hoasa). - Reference for a preliminary ruling: Juzgado de Primera Instancia e Instrucción de Oviedo - Spain. - Copyright - Satellite broadcasting and cable retransmission. - Case C-293/98.

European Court reports 2000 Page I-00629

Opinion of the Advocate-General

I - The factual and legal background of the main action and the questions referred

1 Hostelería Asturiana SA (hereinafter `HOASA'), the defendant in the main action, owns Hotel de la Reconquista (hereinafter `the Hotel') in which it installed a system for receiving terrestrial and satellite television programmes which it then retransmits internally to the clients occupying its rooms. Once received, the programme signals are amplified and sent down coaxial cables to the televisions in the Hotel bedrooms. Before internal retransmission of the received satellite programmes alone, the frequencies carrying the signals are modified (from very high to lower frequencies) to allow the televisions in clients' rooms to be tuned into the correct channel settings. The Entidad de Gestión de Derechos de los Productores Audiovisuales (Collecting Society for Audio-Visual Producers, hereinafter `EGEDA'), the plaintiff in this case, manages, represents and protects the interests and rights of the producers of audio-visual works and recordings. Taking the view that the service of retransmitting audio-visual recordings and other works contained in the television programmes provided to the Hotel's guests infringes the consolidated law on intellectual property (hereinafter the `Consolidated law'), (1) EGEDA brought an application before the Juzgado de Primera Instancia e Instrucción n. 5 de Oviedo seeking that: (i) HOASA be required to suspend all provision of the said service with immediate effect and be prohibited from resuming it without the plaintiff's specific authority, and (ii) the defendant be ordered to compensate the plaintiff in accordance with the latter's general scale of royalties and on the basis of the number of rooms occupied by the Hotel's clients over the period (unspecified in the referral order) in which the activities contested in the action took place.

2 The referring court considers that the outcome of the main action depends on whether the reception of television signals and their subsequent cable retransmission to the various rooms of a hotel, such as that owned by the defendant, constitutes an act of communication to the public of works covered by intellectual property rights. The right of communication to the public (comunicación pública) falls under the rights of utilisation that are vested in the author alone (Article 17 of the Consolidated law). According to Article 20(1), `communication to the public' is any act whereby a work is made accessible to more than one person without previous transmission of examples of that work to them, unless the communication is of a private nature because it has taken place within a strictly domestic context that does not form part of, and is not connected with, a retransmission network of any kind. Article 122 - which comes under Book II(III) (on intellectual property rights other than copyright) of the Consolidated law - states that the right to authorise communication to the public of audio-visual recordings lies with the producer. Furthermore, the users of audio-visual recordings used in acts of communication to the public mentioned in Article 20(2)(f) and (g) of this Law (see below) must pay a fair one-off fee to the producers of those recordings and to the artists that interpreted or performed them. Intellectual property right management bodies are entitled to exercise the right to this remuneration (Article 122(3) of the Consolidated law).

Article 20(2)(f) and (g) of the Consolidated law also makes clear that acts of communication to the public include in particular: (i) the retransmission of any work broadcast by any body other than the original broadcaster, via any of the means listed under (a) to (e) (2) (Article 20(2)(f)), and (ii) the broadcast or transmission of the transmitted work in a place that is open to the public, by any appropriate means (Article 20(2)(g)). For the purposes of the main action, cable transmission (Article 20(2)(e); footnote 2 above) should be included among the means of retransmission referred to in Article 20(2)(f) of the Consolidated law.

3 The order making the reference shows that the Spanish legislator has literally transposed into the Consolidated law (3) the definitions of `communication to the public by satellite' and `cable retransmission' given in Article 1(2)(a) and (3) of Council Directive 93/83/EEC of 27 September 1993 on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission (hereinafter `the Directive'). (4) Article 1 of the Directive states in the section that is relevant to this Opinion:

`...

2. (a) For the purposes of this Directive, "communication to the public by satellite" means the act of introducing, under the control and responsibility of the broadcasting organisation, the programme-carrying signals intended for reception by the public into an uninterrupted chain of communication leading to the satellite and down towards the earth.

...

3. For the purposes of this Directive, "cable retransmission" means the simultaneous, unaltered and unabridged retransmission by a cable or microwave system for reception by the public of an initial transmission from another Member State, by wire or over the air, including that by satellite, of television or radio programmes intended for reception by the public' (my italics).

4 Consequently, it is the view of the referring court that if the service HOASA provides to its clients were to be described as the retransmission of broadcast works, the defendant - as the user of audio-visual recordings used for the acts of communication to the public mentioned in Article 20(2)(f) and (g) of the Consolidated law - would have to pay to EGEDA, which acts in the name and on behalf of the producers and the artists who interpreted or performed the works concerned, a fair one-off fee. On 1 June 1998 the court decided, in accordance with Article 177 of the EC Treaty (now Article 234 EC), to refer the following question for a preliminary ruling:

`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 "reception by the public"?' (5)

5 To conclude that description of the legal background to the main action, I would point out that in accordance with Protocol 28(5) on Intellectual Property in the European Economic Area (hereinafter `Protocol 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 legislation conformed to the substantive provisions of the Convention by 1 January 1994. (7)

6 Article 11bis(1) of the Convention - concerning (inter alia) the communication to the public of a work broadcast by wire (cable transmission) or rebroadcast (by loudspeaker or analogous instruments) - states that `Authors of literary and artistic works shall enjoy the exclusive right of authorising: ... (ii) any communication to the public by wire or by rebroadcasting of the broadcast of the work, when this communication is made by an organisation other than the original one; (iii) the public communication by loudspeaker or any other analogous instrument transmitting, by signs, sounds or images, the broadcast of the work.'

7 Like the other substantive provisions of the Convention (with the sole exception of Article 6bis which concerns the author's moral rights), Article 11bis is deemed to be an integral part of the Agreement on Trade-Related Aspects of Intellectual Property Rights (hereinafter the `TRIPS Agreement') (8) that forms Annex 1C to the Agreement establishing the World Trade Organisation (hereinafter the `WTO Agreement'), 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. (9) The 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 already widely accepted (10) but includes also substantive provisions that refer specifically to those areas of intellectual property that the contracting parties believed were in greatest immediate need of protection. Article 9 of the TRIPS Agreement - in Section 1 (Copyright and Related Rights), Part II (Standards concerning the Availability, Scope and Use of Intellectual Property Rights), which requires WTO members to establish minimum levels of protection - states that `Members shall comply with Articles 1 through 21 of the Berne Convention (1971) and the Appendix thereto'.

II - The arguments of the parties and the observations submitted to the Court by the Member States who have `intervened' and by the Commission

8 In the observations submitted to the Court, EGEDA asserted, primarily, that the reference for a preliminary ruling is inadmissible. In particular, the case does not involve transborder satellite broadcasts or the cable retransmission of programmes that originated in other Member States. Since there is therefore no connection between the parties...