Drawing the line: “communication to the public” in context
The CJEU has, over time, reached different conclusions across a spectrum of factual scenarios. At one end sit clearly commercial or public-facing settings, such as hotels and leisure venues, where operators actively intervene to make works available to a transient audience (for example, SGAE v Rafael Hoteles SA (C-306/05) and Citadines v MPLC Deutschland GmbH (C-723/22) (see my blog here on this case – Another CJEU communication to the public ruling on broadcasting through television sets in hotel rooms) and other hotel cases). At the other end are private or quasi-residential settings, where the relevant users are already part of the audience contemplated at the point of the original broadcast.
The present reference from Germany required the CJEU to decide where retirement homes fall on that spectrum.
Background
The dispute arose between:
1. GEMA, the German collecting society; and
2. VHC 2 Seniorenresidenz und Pflegeheim gGmbH, a retirement home operator.
VHC 2 Seniorenresidenz received TV and radio broadcasts via satellite and redistributed those broadcasts, unaltered, through its internal cable network to residents’ rooms. GEMA argued that this activity amounted to a further “communication to the public” requiring authorisation and the payment of licence fees.
The key issue asked by the referring court was essentially whether “communication to the public” covered simultaneous, unaltered and unabridged retransmission, by the operator of a retirement home, of broadcast programmes received by a satellite reception system to the television and radio connections installed in residents’ rooms, via the cable network installed within that home.
The CJEU’s approach
Perhaps given the amount of case law dealing with the concept of ‘communication to the public’ , the court’s judgment was fairly streamlined – focussing on applying the two established cumulative criteria: i.e. the act of communication and the communication to a public. In applying this criteria, the court summarised that for there to be communication to the public, there must be a communication by means of a specific technical method different from those previously used, or failing that, a communication directed at a new public that was not already taken into account by the copyright holder when they authorised the initial communication to the public of the work.
No new technical means
The court found that the retirement home was not carrying out a distinct act of transmission. The broadcasts were received via satellite and passed on internally, simultaneously and without alteration, through the home’s cable network. This did not amount to the use of “new” technical means. Rather, it was a continuation of the original communication, not an independent act requiring separate consent.
No “new public”
The more significant aspect of the judgment concerns the analysis of a “new public”. Based on the existing case-law, the CJEU summarised that the author only authorises the broadcast to the direct users i.e. the owners of the reception equipment who either personally or within their own private or family circles, receive the broadcast.
The court held that residents of a retirement home who live there on a permanent basis are comparable to tenants in private accommodation. Therefore, they do not constitute a “new public”.
The court was not persuaded by arguments that the provision of additional services, or the operator’s commercial profit-making nature, should alter this analysis. While those factors may be relevant in other contexts, it was not an essential condition.
A further point of emphasis was the avoidance of undue remuneration. Treating such retransmission as a fresh communication would risk granting rightholders additional payment for reaching essentially the same audience. This would go beyond the “appropriate remuneration” required under the Copyright Directive.
Positioning the decision in the case law
The decision is notable for how it situates retirement homes within the CJEU’s broader framework while also clarifying the practical boundary of the concept. Although superficially similar to hotels or other care settings, retirement homes were treated differently because their residents form a stable, residential audience rather than a transient, commercially exploited one. That distinction confirms that internal redistribution in a genuinely residential setting will not, without more, amount to a communication to the public, and that neither the operator’s commercial status nor the provision of ancillary services is, by itself, enough to change the analysis.
Practical implications
From a practical perspective, the judgment gives operators of residential care environments greater confidence that routine in-house retransmission to permanent residents will generally fall outside Article 3(1). For collecting societies, however, the ruling narrows the scope for extending licensing models into settings that are closer to private domestic use than public exploitation.
Relevance for UK law
Although CJEU decisions are no longer binding on UK courts, they remain potentially persuasive authority, particularly where UK copyright law continues to reflect the structure and concepts of EU derived law.
Decisions such as VHC 2 Seniorenresidenz therefore continue to provide a useful interpretative framework and may be taken into account where UK courts are faced with comparable factual scenarios and the application of the test for “communication to the public”.
This article was authored by Miryam Boston, Senior Associate in the IP team at Fieldfisher and was published on the firm’s IP blog, SnIPpets, on 20 May 2026.
