Introduction
On April 30th 2026, the Court of Justice of the EU (CJEU) handed down a judgment centred on the copyright concept of "communication to the public". The CJEU held that relaying satellite television and radio programmes to residents' rooms in a care home via an internal cable network does not constitute a separate act of "communication to the public" within the meaning of the Copyright and Information Society Directive (‘Copyright Directive’).
In this blog, we examine the ruling and its practical implications. However, in order to understand the decision, it is helpful to first turn to the underlying copyright concept and what the act of "communication to the public" actually means.
What is a "communication to the public"?
Under Article 1 of the Dutch Copyright Act (Auteurswet, "Aw"), a copyright holder has, among other rights, the exclusive right to disclose their work to the public. Article 12 of the Dutch Copyright Act provides a non-exhaustive list of acts that may fall within the scope of this right.
In addition, Article 3(1) of the Copyright Directive directive harmonises this right across EU Member States. Under this provision, copyright holders have the exclusive right to authorise or prohibit any "communication to the public" of their works without their consent. Article 12 of the Dutch Copyright Act must therefore be interpreted in conformity with the Directive where it concerns a 'communication to the public'. This is not the only grounds for copyright infringement; however, it applies specifically to situations where protected works are made available to the public at a distance, without the distribution of physical copies.
According to the Court, an act of "communication to the public" involves two cumulative criteria. First, there must be an act of "communication”, meaning that the copyright-protected material must be provided in such a way that the public can access it. The Court interprets this concept broadly: virtually any form of transmission of a protected work can constitute an act of communication. Examples may include a radio or television broadcast, streaming across the internet, making material available on a website, or posting hyperlinks.
Secondly, this communication must be directed at a "public," meaning an indeterminate and fairly large number of potential recipients.
However, a communication to the public only becomes relevant under copyright law if it is directed at a new public or takes place via a substantially different technical means than the original communication. A "new public" refers to a public that the rightholder did not have in mind when it authorised the initial communication of its work to the public. For instance, this may occur when a protected work that usually sits behind a paywall is made freely available online to a broader audience via a hyperlink. The underlying logic behind the notion of a “new public” is that the rightholder loses control over the circle of recipients, which consequently may give rise to a separate act of communication to the public for which authorisation from the rightsholder is required.
An example of a different technical means may include a television broadcast that is recorded and subsequently made available on an internet streaming service. This would also constitute a (new) communication to the public for which the rightholder's permission is required.
The CJEU's ruling
The facts of the case are as follows. GEMA, a German collecting society for music copyrights, brought proceedings against VHC 2, the operator of a care home. GEMA argued that VHC 2 required a licence to relay television and radio programmes to its residents' rooms. The German Federal Court of Justice (Bundesgerichtshof) referred preliminary questions to the CJEU.
The CJEU held that relaying satellite television and radio programmes to residents' rooms in a care home via an internal cable network does not constitute a separate "communication to the public" within the meaning of the InfoSoc Directive. According to the Court, the care home residents do not form a new public, as they already belong to the public for whom the television and radio programmes at the care home are intended. Moreover, the broadcast is not relayed via a different technical means. For these reasons, the Court found there was no communication to the public. As such, an additional licence or remuneration is not required. The Court added that this interpretation prevents rightholders from receiving higher remuneration than they are legally entitled to.
Furthermore, the Court considers that the broadcast is not retransmitted by any other technical means. For that reason, there is no communication to the public, so no additional licence or remuneration is required. The Court notes in this respect that this interpretation prevents rightholders from receiving higher remuneration than that to which they are entitled.
This ruling is consistent with earlier case law. An operator is only required to pay additional remuneration under copyright law if their actions reach a new public or employ a substantially different technical means.[1]
How does "communication to the public" work in practice?
A common question is how the concept of communication to the public relates to publishing content on the internet. The doctrine of the "new public" plays a particularly important role here. A communication to the public may occur where copyright-protected material is made available online again. This applies when the new audience is one that the rightholder did not envisage when making the original communication.".
As a general rule, linking to a publicly accessible website is permitted, provided that the work was lawfully published there. However, this does not apply when the content originates from a restricted environment, such as a paywalled website or a members-only platform. In such cases, making the content available may constitute a communication to a new public, which requires the rightholder's permission.
This question can also arise in the context of scraping. Merely collecting copyright-protected material, without subsequently making it available to the public, does not generally amount to a communication to the public. It may, however, constitute a reproduction (a separate exclusive right under Article 2 of the Copyright Directive), which falls outside the scope of this blog. On the other hand, if scraped content is republished online (for example, on one's own website or via a public social media-account), this may constitute an act of communication to a new public. This is especially the case when the original source was not freely accessible. The assessment becomes more complex where publication takes place within a closed or private environment.
Conclusion
When content is published online, it is important to bear in mind the exclusive right of the copyright holder to object to any communication to the public of their work without their consent. Whether a communication to the public has occurred depends on the specific circumstances of the case. Still, this new ruling confirms that, at least for the time being, the assessment continues to hinge on whether the third party’s conduct targets a new public or involves a substantially different technical means.
Do you have any questions after reading this blog? Please feel free to contact us. We are happy to help you.
[1] CJEU 15 March 2012, C 135/10 (SCF v Marco Del Corso).
