Request for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 15 February 2024 - Gesellschaft für musikalische Aufführungs- und mechanische Vervielfältigungsrechte e.V. (GEMA) v VHC 2 Seniorenresidenz und Pflegeheim gGmbH

(Case C-127/24, VHC 2 Seniorenresidenz)

Language of the case: German

Referring court

Bundesgerichtshof

Parties to the main proceedings

Applicant and appellant on a point of law: Gesellschaft für musikalische Aufführungs- und mechanische Vervielfältigungsrechte e.V. (GEMA)

Defendant and respondent on a point of law: VHC 2 Seniorenresidenz und Pflegeheim gGmbH

Questions referred

Do residents of a commercially operated retirement home who have television and radio connections in their rooms, to which the operator of the retirement home simultaneously retransmits via its cable network, unaltered and unabridged, broadcast programmes received by means of its own satellite receiving system, constitute an ‘indeterminate number of potential recipients’ for the purposes of the definition of ‘communication to the public’ under Article 3(1) of Directive 2001/29/EC? ¹

Is the definition used to date by the Court of Justice of the European Union, according to which ‘communication to the public’ within the meaning of Article 3(1) of Directive 2001/29 requires the protected work to be communicated using technical means different from those previously used or, failing that, to a ‘new public’, that is to say, a public that was not already taken into account by the copyright holders when they authorised the original communication of their work to the public, still generally applicable, or is the technical means used only relevant in cases where content initially received terrestrially or via satellite or cable is retransmitted over the Internet?

Is there a ‘new public’ for the purposes of the definition of ‘communication to the public’ under Article 3(1) of Directive 2001/29 when the operator of a retirement home, for profit-making purposes, simultaneously retransmits via its cable network, unaltered and unabridged, broadcast programmes received by means of its own satellite receiving system to the television and radio connections in the rooms of the residents of the retirement home? For the purposes of this assessment, is it relevant whether or not residents are able to receive the television and radio programmes in their rooms terrestrially, irrespective of the cable transmission? Furthermore, for the purposes of this assessment, is it relevant whether the right holders already receive remuneration for consenting to the original broadcast?

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¹ Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (OJ 2001 L 167, p. 10).