The opinion released on 3 February 2011 by Advocate General in Murphy (Joined Cases C-403/08 and C-429/08) also covers the communication to the public right.
The AG Professor Juliane Kokott held that the showing of Premier League live matches in pubs does not constitute communication to the public under Article 3(1) of the Info Society Directive. Therefore no violation of the communication to the public right pursuant to said Directive could be validly affirmed, as such communication does not occur at all. In particular, the AG stressed that the showing of TV programs in bars and pubs does not fall within a specific category identified in the Info Society Directive, i.e. the communication to the public not present at the place where the communication originates (Recital 23). She believes that – when publicans show TV programs – the relevant public (i.e. the pub customers) is present at the place where the communication originates. In other words, the communication would originate on the TV screen (paragraph 144 of the opinion).
Professor Kokott’s findings appear to depart from the previous case law of the ECJ on communication to the public. Indeed in SGAE v Rafael Hoteles (Case C-306/05) the ECJ gave a wide interpretation of such act. It was held that the distribution of a TV signal by a hotel to clients staying in the rooms, whatever technique is used to transmit the signal, constitutes communication to the public under Article 3 of the Info-Society Directive. In case the ECJ confirms the AG’s finding, I believe the Court should better distinguish this case from SGAE v Rafael Hoteles: indeed the circumstances of the two cases seem similar.
Another point of the opinion raises some doubts. The fact that the football matches in the pub are showed free of charge – Professor Kokott seems to hint – supports the finding that the act in question does not amount to communication to the public. This sounds a bit odd to me. Indeed I think that such a fact should not affect the decision whether the showing of TV in pubs and bars constitutes communication to the public. Also the guests of hotels watch TV in their room free of charge: and this did not prevent the ECJ from considering the distribution of a TV signal to customers staying hotel rooms as communication to the public (see again SGAE v Rafael Hoteles).
(*) This post is also published in the research blog of the City Law School (City University London) at http://citylawresearch.blogspot.com/2011/02/communication-to-public-in-murphy.html