GEMA v. REHA Training and the CJEU's case law on the right of communication to the public - an opportunity for revision and consolidation
The paper reviews the various questions concerning the concept and right of communication to the public in the request for preliminary ruling in the GEMA v. REHA Training case stressing it offers a good opportunity for a review and consolidation of the case law of the CJEU on the right of communication to the public. As regards the „new public” criterion introduced by the CJEU as a condition of applicability of the right of communication to the public, the paper describes and discusses how the Court based this theory exclusively some comments in a nearly 40-year-old Guide of WIPO of a general introductory nature by considering it as a reliable source, when even that publication written in an “easy style” did not suggest the applicability of such a criterion and when the truly reliable sources – the text and „preparatory work” of the Berne Convention as duly interpreted, the resolutions and decisions of the competent WIPO bodies, the authoritative treatises on the Convention, as well as a new WIPO Guide – all make it clear that the application of such a criterion would be in conflict with the Convention. It is pointed out that the adoption of the erroneous “new public” theory took place because the parties and other participants in the cases concerned had not identified those decisive sources and, thus, the Court was not duly informed. The paper also discusses the reasons for which the criteria applied by the Court in the SCF v. Del Corso case (to which the request for preliminary ruling in the REHA Training case refers) concerning the profit-making nature of the acts of communication and the active attitude of the members of the public as conditions of the application of the right of communication to the public are not in accordance with the Berne Convention and the EU Directives either. The paper suggests that the non-application of the right of communication to the public in the SCF v. Del Corso case might only be in accordance with the treaties and the acquis if it were regarded as to be based on the de minimis principle by having taken into account the various specific aspects of the case, not as definitional criteria of the concept of communication to the public but only as justifying in the given concrete situation, when considered together in a cumulative manner, an exception to the application of the right of communication to the public. It is added that, in the REHA Training case, the same specific aspects justifying such a de minimis exception are not present.