ECJ glued to hotel TVs

The ECJ has received a reference (C-136/09) from the Greek Supreme Court concerning the interpretation of the Copyright Directive (2001/29/EC). Bafflingly – at this point at least – it seems indistinguishable from a previous reference. The question that just won’t go away concerns TV sets in hotel rooms.

The previous reference (C-306/05) was made by a Spanish court. Did the installation of TV sets in hotel rooms constitute ‘communication to the public’ under Article 3 of the Directive? Yes, answered the ECJ: although the mere provision of physical facilities didn’t amount to communication, the distribution of a signal did. The Court reasoned that the hotel was intervening, transmitting the broadcasts to ‘a new public’ – a public that consisted of a rapid turnover of guests who had the opportunity of watching the TVs (whether or not they actually did).

So what does the Greek court need clarified? The refinement (according to the IPO, here) is:

Can the mere installation of a television set in a hotel room and its connection to a central antenna in the hotel, and without any further actions or interventions by the hotelier, constitute communication to the public, within the meaning of Article 3 of Directive 2001/29/EC? In particular, does communication to the public by means of a television set require technical intervention by the hotelier?

In the absence of more detail, this is a question worthy of the Sphinx (though if you can read Dutch, you may be able to unravel the riddle by reading here). Perhaps the issue is that the TVs in the Divani Palace Acropolis hotel are all directly linked to the aerial, so arguably the hotel isn’t first receiving a signal and then passing it on to a ‘new public’? For the ECJ to make such a distinction would appear to require a step back to the position taken by the Advocate General in her opinion on C-306/5, which said the hotel was only communicating if it relayed a signal that had come to it first.

Let’s hope that it is Socratic clarity – not sophistry – that finally emerges from this cable-splitting debate.