The High Court has referred five questions to the Court of Justice of the European Union about whether Irish hotels must pay equitable remuneration to phonogram producers for sound recordings made available in guest bedrooms.
In an interim decision delivered on 23 March 2010, Ms Justice Finlay Geoghegan said the EU court’s interpretation of the relevant directive was needed before she could give judgment on the issue reserved in the proceedings. The High Court has not decided whether section 97 of the Copyright and Related Rights Act 2000 breaches Ireland’s EU obligations. The plaintiff’s separate claim for damages also remains unresolved.
The plaintiff, Phonographic Performance (Ireland) Limited, is a licensing body representing phonogram producers. It argued that EU law required Ireland to provide producers a right to equitable remuneration when hotels communicate commercially published recordings to the public. The State and the Attorney General disputed that the meaning given to “communication to the public” in a separate EU copyright directive could simply be applied to this remuneration right. They also argued that the directive’s provision for a “single equitable remuneration” might not require payment by a hotel in addition to a broadcaster, and raised private use as a possible basis for exemption.
The parties agreed that the case concerned recordings heard in hotel and guesthouse bedrooms, not other parts of those premises, and excluded interactive or on-demand transmissions. The judge found that section 97 meant hotels and guesthouses did not have to pay phonogram producers equitable remuneration for broadcast recordings distributed to bedroom televisions or radios, or recordings supplied in physical or digital form for bedroom playback. She noted that similar consequences could apply to institutions such as hospitals and nursing homes, but those uses were outside the case.
The five questions referred ask whether a hotel distributing a broadcast signal to bedroom televisions or radios is a “user” making a “communication to the public”; whether any remuneration is due from the hotel in addition to the broadcaster; whether private use permits an exemption; and whether supplying other playback equipment and recordings has the same communication-to-the-public status and may be exempted for private use.
The referral is not a final ruling on those questions or on the plaintiff’s claim. The High Court sought the EU court’s answers before deciding the disputed issue.