Austrian Supreme Court follows ECJ precedent with regard to hotel TV
An Austrian collecting society filed a law suit against a hotel company and claimed for rendering of accounts with regard to satelite TV provided to guests in defendant's hotel rooms. Both, court of first instance (Handelsgericht Wien) and apellate court (OLG Wien) granted the claim. In judgement 4 Ob 120/10s of Aug. 31, 2010, Austrian Supreme Court (OGH) upheld this decision following the ECJ judgement in case C-306/05 - SGAE v. Rafael Hoteles, according to which
- the distribution of a signal by means of television sets by a hotel to customers staying in its rooms, whatever technique is used to transmit the signal, constitutes communication to the public within the meaning of Article 3(1) of Directive 2001/29/EC on the harmonisation of copyright and related rights in the information society and
- the private nature of hotel rooms does not preclude the communication of a work by means of television sets from constituting communication to the public within the meaning of the aforesaid provison.
OGH held that though
- interpretation in accordance with European directives is only possible where the national law and its rules of interpretation allow for sufficient leeway
- whereas such interpretation must not radically redefine the meaning of the national law
the ECJ judgement - even if strongly critisized - was binding as neither wording nor meaning of the national Copyright Act would exclude interpretation in line with this judgement.
The OGH judgement is available for download in German here>>.