Hotels should not pay broadcasters for use of televisions – Deloitte

An Austrian court has opened a debate on the interpretation of Article 8 (3) of Directive 2006/115/EC following a claim by a broadcaster.

The broadcaster’s claim relates to a hotel installing televisions in rooms for transmitting television and radio signals and concerns whether this practice transgresses the exclusivity right of the broadcasters, and therefore should be subject to the corresponding fees in exchange for the consent for such activity. Pending the final resolution of the ECJ, the advocate general of the ECJ has concluded that while the communication of content in a hotel room is considered an act of communication to the public, the price paid to use said room is related to the provision of accommodation and not with additional services, such as watching television, the use of the minibar or having internet access.

Article 8 (3) of Directive 2006/115 / EC states that: “Member States shall provide for broadcasting organisations the exclusive right to authorise or prohibit the rebroadcasting of their broadcasts by wireless means, as well as the communication to the public of their broadcasts if such communication is made in places accessible to the public against payment of an entrance fee.”

On the basis of the referred Article 8 (3), the Austrian broadcaster considered that the Hotel Edelweis, by allowing a television signal received in the rooms of the hotel in which it operates implies: (i) to communicate to the public; (ii) in an accessible place to the community; and (iii) charging an entrance fee; and implied a transgression of the exclusivity right of the broadcasters and therefore had to be subject to the corresponding fees in return for the consent for that activity.

In this context, the Austrian entity filed a complaint before the Austrian courts requesting the Hotel Edelweiss to be compelled to provide information on the number of rooms in which it operated and the number of television channels that could be received in them, as well as the payment of damages for the communication thereof to date.

In the light of the foregoing, the hotel defended that the hotel rooms were not places accessible to the public against payment of an entry fee as required by Article 8 (3) of Directive 2006/115/EC and therefore transmissions were not subject to the exclusive right laid down in those provisions.

The Austrian court referred to the ECJ for a preliminary ruling on whether the hotel, by enabling such reception, was indeed communicating the broadcasts to the public and whether its room could be considered to be a place accessible to the community, and the price paid for said room an entry fee.

Finally, the Advocate General considered that a fee for a room in a hotel was not a fee for the possibility of viewing television broadcasts there, but for accommodation. Making television broadcasts available was merely an additional and ancillary service which a customer expected, and although it might raise the price of a room, it would be difficult to say precisely by how much.

In summary, Article 8.3 of Directive 2006/115/EC must be interpreted as meaning that the communication of a television or radio signal through television sets installed in hotel rooms does not constitute communication to the public of the footages actually corresponding to broadcasting organisations since it does not meet the requirements of taking place in a location accessible to the public against payment of an entrance fee.

Álvaro Alarcon is a senior associate at Deloitte Legal. He can be contacted at aalarcon@deloitte.com