Can a building code decide a copyright case? Communal antennas and the “new public”

Few rights look more thoroughly harmonised than the right of “communication to the public”. Article 3(1) of the InfoSoc Directive, and the CJEU’s “new public” doctrine built to give it a uniform reach, are meant to apply the same way from Lisbon to Tallinn. Yet a recent Austrian judgment, echoed six months later by the CJEU on parallel facts in a German reference, shows how the answer can be settled by something deliberately un-harmonised: local building and planning law. Whether a housing provider that pipes a broadcast signal into its tenants’ flats owes a copyright licence turns less on Article 3(1) than on the municipal rules that decide who may live in those flats, and whether they may put a dish on the façade.

OGH 21 October 2025, 4 Ob 3/25g concerned a housing cooperative (Wohnbaugenossenschaft) which equipped at least 133 estates with communal antenna systems feeding no fewer than 10,000 connections, and barred residents from installing their own satellite dishes. Under the Austrian Collecting Societies Act (Verwertungsgesellschaftengesetz), AKM manages the exploitation rights and remuneration claims of composers, lyricists and music publishers. The collecting society sued for disclosure and payment of a licence fee, arguing that piping the signal into those flats was a communication to the public within the meaning of Article 3(1) of Directive 2001/29/EC. The Austrian Supreme Court rejected the appeal and confirmed the lower courts’ decisions. Permanent tenants are not a new public, so there is no communication to the public.

Six months later, the CJEU reached the same result on near-identical facts. Case C-127/24 (GEMA v Seniorenresidenz), 30 April 2026 involved a retirement home which received programmes through its own satellite dish and retransmitted them, unaltered, through in-house cable to residents’ rooms. The Court held this is not a communication to the public within the meaning of Article 3(1). Its reasoning handed the decisive question back to national law.

Why the case turns on the 'new public'

The concept of a communication to the public has two cumulative core elements, an act of communication and a public, supplemented with a further, disjunctive requirement: the work must be communicated either by “specific technical means” different from those used before or, failing that, to a “new public” (C-135/23, GEMA v GL, para 43; C-127/24, para 26). Both have to be absent for the operator to escape liability. In-building satellite-to-cable involves neither. The CJEU's answer rests on the second alternative: permanent residents are not a new public. Like tenants who take up residence in a rental flat (C-135/23, para 45), they were already within the audience the rightholder had in mind for the original broadcast (C-127/24, paras 39–41). Neither the care services nor the home’s profit motive changes this (C-127/24, paras 41 and 43).

The CJEU also held that the relay is not a specific technical means either: that label is reserved for an independent onward transmission, typically over the internet, and not for the mere relay of a received signal (C-127/24, paras 31–34). Hotel guests are the classic contrast. They are a new public precisely because they reach the broadcast only through the operator’s intervention (SGAE, C-306/05, para 42).

The hidden variable of local business codes

So the decisive question is whether the occupants are resident or transient, and that is settled in practice by local law. In the Austrian case, the circumstance that did the work was the short-term-letting ban. The cooperative had shown, uncontested, that short-term sub-letting was excluded both by contract and by statute, so its tenants counted as residents in a main or second home, and were therefore already part of the public the rightholder had in mind when the broadcast was first authorised (OGH 21 October 2025, 4 Ob 3/25g, para 27, applying C-135/23). That exclusion is itself relevant to planning and housing law: Vienna’s Building Code restricts regular paid short-term accommodation both in residential zones and in other parts of the city, unless an exemption is granted. A non-profit housing association is bound additionally by statutory rules barring it from allocating dwellings for commercial short-term tourist letting. Take this scaffolding away and the analysis could flip. Let even a handful of flats to tourists, and the whole installation risks tipping into communication to the public territory, a live and unlitigated risk for serviced apartments and boarding-houses.

The townscape angle is more oblique, and it is worth being precise about what the court did and did not say. On the undisputed facts, the cooperative bars individual dishes because it provides a communal system “to avoid a proliferation [of dishes] (in accordance with the Building Code)” (OGH 21 October 2025, 4 Ob 3/25g, para 27), a nod to the streetscape-protection rules that make dishes in Vienna’s protected zones subject to permit. But the court did not rely on that background. It accepted that the cooperative might also be pursuing its own commercial interest, and held that this changed nothing, because the system “merely replaces” each tenant’s own reception equipment “without creating additional reception possibilities” (para 27). The functional substitution is the decisive element, not the cooperative’s motive (para 28). That therefore the building code was the true cause of the copyright outcome is fair to infer: the reason substitute is necessary is that the façade rules keep individual dishes off the wall.

Even the use-restriction has a soft edge. Whether a single tenant’s contract-breaching sub-let on a short-term rental platform is attributable to the operator is unsettled, since a communication to the public requires the operator’s own deliberate, central intervention (para 15), which a rogue sub-let arguably lacks. As far as the authors are aware, there is no Supreme Court authority on this point.

Not a Viennese quirk

None of this is peculiar to Vienna. Germany offers another example.

The one that matters is the use-restriction. Germany’s municipal Zweckentfremdungsverbote (prohibitions on diverting housing from residential use) permit cities to forbid the use of a dwelling as a holiday let without a permit; Berlin’s Zweckentfremdungsverbot-Gesetz (Act on the Prohibition of the Diversion of Housing from Residential Use) is the standard example, upheld as constitutional by the VG Berlin (8 June 2016 – 6 K 103.16). Where such a rule bites, a building’s occupants are residents rather than the transient clientele that would supply a new public; relax or exempt these rules, and the same flats can fill with tourists who flip the analysis.

The dish displacement angle travels too. German building and monument-protection law restricts individual dishes on façades and in protected areas, and German tenancy and condominium case law lets a landlord or owners’ association refuse an individual dish where a communal antenna or cable already secures reception, although these rules are to be balanced against information freedom, as established in BVerfGE 90, 27 – Parabolantenne I and applied in decisions such as BGH V ZB 51/03. Where the façade rules keep the dish off the wall, the communal antenna is a substitute rather than an expansion.

The paradox, and what to do about it

Here is the paradox. One of the most harmonised instruments in EU copyright is, in mass housing conditions, decided in practice by rules that are deliberately unharmonised: the local use-restrictions and short-term-letting rules that determine whether a building’s occupants are residents or a transient public, backed by the heritage and façade rules that keep individual dishes off the wall. Two identical cable networks can produce opposite copyright outcomes depending only on the local regime governing the buildings they serve.

Austria has been here before. Its former communal antenna carve-out (§ 17(3)(2) UrhG) was repealed without replacement by the 2021 copyright amendment (Urh-Nov 2021) as incompatible with EU law. The CJEU dealt the same fate to Austria’s 500-subscriber cable exemption in AKM v Zürs.net (C-138/16), where it worried about the “cumulative effect” of many small communal installations.

One forward-looking response, floated de lege ferenda by Walter, is a staggered remuneration right that kicks in at roughly 25–50 connections (Michel Walter, case note on OGH 4 Ob 3/25g, Medien und Recht 2025, 305, para 4). This would hit exactly the large communal systems and break the link between the copyright question and local occupancy rules. Until something like that arrives, the practical lesson for developers and housing managers is dull but clear: anchor and document the exclusion of short-term letting, both in the tenancy contract and by reference to the applicable housing and building law. In this corner of copyright, the exemption stands or falls on the paperwork, not on Article 3(1) of the InfoSoc Directive. It is a defence to be maintained, not a safe harbour to be assumed.

The communication to the public saga has kept this blog busy for years. C-127/24 adds a twist worth watching: the moment when harmonised copyright quietly hands the pen to the local planner.