Belgian SatCab questions head for Luxembourg

Thanks to Dirk Visser (an advocaat with Klos Morel Vos & Schaap and professor of Intellectual Property law at Leiden University) I have some hot news concerning a reference to the Court of Justice of the European Communities of a series of copyright-related questions for preliminary rulings. The reference emanates from Brussels Court of Appeal, 27 October 2009, in Airfield v Agicoa and Airfield v Sabam.

The questions concern the service offered by TV Vlaanderen in Belgium, an affiliate of the Dutch Canal Digitaal. The questions relate to the following two situations at hand which involve the following:

Situation I

1. A broadcasting organization sends an encrypted signal, or a signal through a fixed connection, to an independent satellite TV provider.

2. The provider of a satellite TV service has that signal (with the consent of the broadcasting organization) encrypted (once more or differently) elsewhere in Europe and linked up to a satellite by an affiliate.

3. The signal is then, with the consent of the broadcasting organization, linked down as part of a package of television channels to the subscribers of the satellite TV provider who can watch it by means of a decryption card.

Question (summary):

• Does the satellite TV provider communicate to the public (and should therefore pay to Agicoa et al.) in the country where it offers the decryption cards (and therefore has its subscribers/viewers)? Or does only the affiliate (and/or broadcasting organization) communicate to the public in the country where the affiliate uplinks to the satellite?

Situation II

1. A broadcasting organization links up in conformity with the instructions of an independent satellite TV provider an encrypted signal elsewhere in Europe to a satellite.

2. The signal is next (with the consent of the broadcasting organization) linked down as part of a package of television channels to the subscribers of the satellite TV provider who can watch it by means of a decrypting card.

Question (summary):

• Does the satellite TV provider communicate to the public (and must therefore pay to Agicoa et al.) in the country where it provides the decrypting cards (and therefore has its subscribers/viewers)? Or does the broadcasting organization only communicate to the public in the country where it links up to the satellite?

The SatCab Directive (Council Directive 93/83/EEC of 27 September 1993 on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission) requires some scrutiny for the purpose of addressing these questions. The relevant provisions are Article 1(2)(a-c):

(a) For the purpose of this Directive, 'communication to the public by satellite' means the act of introducing, under the control and responsibility of the broadcasting organization, the programme-carrying signals intended for reception by the public into an uninterrupted chain of communication leading to the satellite and down towards the earth.

(b) The act of communication to the public by satellite occurs solely in the Member State where, under the control and responsibility of the broadcasting organization, the programme-carrying signals are introduced into an uninterrupted chain of communication leading to the satellite and down towards the earth.

(c) If the programme-carrying signals are encrypted, then there is communication to the public by satellite on condition that the means for decrypting the broadcast are provided to the public by the broadcasting organization or with its consent.

Recital 14 to the SatCab Directive reads as follows:

(14) Whereas the legal uncertainty regarding the rights to be acquired which impedes cross-border satellite broadcasting should be overcome by defining the notion of communication to the public by satellite at a Community level; whereas this definition should at the same time specify where the act of communication takes place; whereas such a definition is necessary to avoid the cumulative application of several national laws to one single act of broadcasting; whereas communication to the public by satellite occurs only when, and in the Member State where, the programme -carrying signals are introduced under the control and responsibility of the broadcasting organization into an uninterrupted chain of communication leading to the satellite and down towards the earth; whereas normal technical procedures relating to the programme-carrying signals should not be considered as interruptions to the chain of broadcasting;

Dirk comments are as follows:

1. Article 1(2)(b) of the SatCab Directive is clear in my view: in this trajectory there is only one instant of communication to the public, i.e. in the place and moment of the uplink to the satellite. This is the system and purpose of the SatCab Directive.

2. It necessarily concerns maximum harmonization: the Member States are not free to characterize the downlink and/or making available of decrypting cards also as communication to the public relevant to copyright law. After all, the intended legal certainty, as appears inter alia from recital 14, would not be achieved in that way.

3. The satellite TV provider therefore does not communicate to the public in my view (and so does not have to pay to Agicoa et al.) in the country where it offers the decryption cards (and therefore has its subscribers/viewers).

4. Only the affiliate or broadcasting organization communicate to the public in the country where the affiliate links up to the satellite and it should ensure all ights there, also for the other European countries where decrypting cards are made available to the public with the consent of the broadcasting organization.

The full text (in Dutch) of the two more or less identical decisions (one against Agicoa and one against Sabam, the Belgian performing rights society) can be found here and here.