Double Licence Fees Are Not Punitive Damages
| DOI | 10.1093/jiplp/jpx094 |
| Date | 30 May 2017 |
| Pages | 546-548 |
| Year | 2017 |
| Published By | Oxford University Press |
aired, the payment made by a customer is principally for a
meal or drink, not for the broadcast. Therefore, as this pay-
ment is not specifically for the broadcast, the payment is
not sufficient to be deemed an entrance fee. Applying this
point to hotel services, the court held that payment for a
hotel room is first and foremost in consideration for the
accommodation service. The additional services provided
in the hotel room, such as TV and radio broadcasts, are
merely supplementary and typically included in the price
of the room. Despite these additional services in turn af-
fecting the hotel’s standing and consequently the overall
price, the payment made by a customer was not specifically
in return for a broadcast.
Ultimately, the court held that a hotel room is not a place
accessible to the public against the payment of an entrance fee
for the purposes of Article 8(3) of the Rental and Lending
Rights Directive. The price of a hotel room cannot be consid-
ered akin to an entrance fee in the context of a communica-
tion to the public. As such and subject to the own assessment
of the referring court, the acts of HHE and other hotels in air-
ing television and radio broadcasts would not fall within the
exclusive right of broadcasting organizations.
Practical significance
This case exemplifies the CJEU discretion to look beyond
the EU acquis in order to interpret EU directives.
The WIPO Guide to the Rome Convention and to the
Phonograms Convention falls outside the scope of the
acquis. However, use of this text as part of the court’s inter-
pretative approach does not necessarily reflect a derogation
from the EU acquis. Rather, the court used the text for his-
torical and contextual purposes to comprehend fully why
an additional qualification of an entrance fee was included
as part of Article 8(3) of the Rental and Lending Rights
Directive in the first place.
Advocate General (AG) Szpunar had issued an earlier
Opinion on 25 October 2016 (EU:C:2016:795). He had
come to the same conclusion later reached by the court,
noting that neither the drafting history nor the objective of
Article 8(3) would allow an interpretation of ‘places acces-
sible to the public against payment of an entrance fee’ to
cover hotel rooms. AG Szpunar also made the point that
broadcasters ultimately share in the economic, albeit in
practice negligible, benefit arising from accessibility of TV
broadcasts in hotel rooms. Most TV broadcasts are free-to-
air, with funding coming from advertisements and other
commercial communications. This funding will depend on
the number of viewers. The provision of TVs in hotel
rooms allows for the potential number of viewers to grow
and therefore has a beneficial (although limited) effect on a
broadcaster’s revenue.
The case also illustrates the differing levels of protection
afforded to broadcasts of broadcasting organizations as
compared to other works protected by copyright.
Broadcasts enjoy in fact limited protection given the com-
munication must be made in a place accessible to the pub-
lic against the payment of an entrance fee. The discrepancy
in protection afforded and the fact that the same form of
use is subject to different rules depending on whether it
concerns broadcasters’ broadcasts or other works protected
by copyright is not inconsistent with law. As AG Szpunar
had stressed in paragraph 46 of his Opinion, there does not
appear to be any indication that legislation is seeking or
needs to place the level of protection on equal footing.
James Jeffries-Chung
Clifford Chance
Email: james.jeffrieschung@cliffordchance.com
doi:10.1093/jiplp/jpx086
Advance Access Publication 30 May 2017
nDouble licence fees are not punitive
damages
Stowarzyszenie ‘Oławska Telewiz ja Kablowa’ w Oławie
v Stowarzyszenie Filmowc
ow Polskich w Warszawie, C-367/
15, EU:C:2017:36, 25 January 2017
Directive 2004/48 (the Enforcement Directive) does not
preclude national law which provides that the holder of
an IP right that has been infringed may demand pay-
ment of a sum corresponding to twice the appropriate
fee which would have been due if permission had been
given for the work concerned to be used.
Legal context
This judgment of the Court of Justice of the European
Union (CJEU) followed a reference for a preliminary ruling
from the Polish Supreme Court. The reference had been
made in the context of litigation between collective rights
management society Stowarzyszenie Filmowc
ow Polskich
(SFP) and broadcasting company Stowarzyszenie ‘Oławska
Telewizja Kablowa’ (OTK). Polish law provided that a
copyright owner whose economic rights have been in-
fringed may request payment of a sum of money corre-
sponding to twice the amount of the appropriate fee which
would have been due at the time it was sought if the right-
holder had given permission for the work to be used. The
referring court wished to know whether Article 13 of the
Enforcement Directive allows the award of such a lump
sum as ‘damages’, considering that Recital 26 in the pream-
ble states that it is not the aim of the directive to introduce
punitive damages.
Article 13 Enforcement Directive provides that:
Member States shall ensure that the competent judicial au-
thorities, on application of the injured party, order the in-
fringer who knowingly, or with reasonable grounds to
know, engaged in an infringing activity, to pay the
546 CURRENT INTELLIGENCE Journal of Intellectual Property Law & Practice, 2017, Vol. 12, No. 7
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