Thursday, 27 February 2014

Spa patients as hotel guests - CJEU in case OSA (C-351/12) on copyright fees

27 February 2014: CJEU in case OSA (C-351/12)

In this case compliance of Czech law with the Copyright Directive 2001/29 was questioned, since Czech law allowed health establishments (which could include health spas) to transmit music in patients' rooms while they were being provided healthcare, without the need for the health establishments to pay copyright fees. AG Sharpston's opinion in this case (Silence is golden) was that this provision did not seem to fall under the exceptions provided for in the Copyright Directive and was rather covered by the general provision of art. 3(1). By transmitting protected works by means of television and radio sets located in the patients' rooms, a spa carries out a communication of these works to the public, taking into account that just like in any hotel the spa would provide services to many people throughout the year, even if spa patients occupy their rooms on average longer than hotel guests (par. 27-33). The CJEU agreed, therefore, with AG Sharpston that the exemption in Czech law did not comply with the Directive (par. 36, 41). The CJEU also mentions that while it is acceptable that a collecting society of copyright fees would have a monopoly within a given Member State to effectively manage IP rights' protection that does not entitle such a society to abuse its dominant position on the market. It should not, therefore, set copyright fees at a level that is much higher than in other Member States. It is for the national court to determine whether this situation took place in a given case (par. 86-90).

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