Mysteries of outer space

The IPO website carries news of these Article 234 references: C-431/09 and C-432/09 (N.V. Airfield, B.V. Canal Digitaal v C.V.B.A. Belgische Vereniging van Auteurs, Componisten en Uitgevers):

"1. Does 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 preclude the requirement that a supplier of digital satellite television must obtain the consent of the copyright holders in the case where a broadcasting organisation transmits its programme-carrying signals, either by a fixed link or by an encrypted satellite signal, to a supplier of digital satellite television which is independent of the broadcasting organisation, and that supplier has those signals encrypted and beamed to a satellite by a company associated with it, after which those signals are beamed down, with the consent of the broadcasting organisation, as part of a package of television programmes and therefore bundled, to the satellite television supplier’s subscribers, who are able to view the programmes simultaneously and unaltered by means of a decryption card or smart card provided by the satellite television supplier?
2. Does Directive 93/83 preclude the requirement that a supplier of digital satellite television must obtain the consent of the copyright holders in the case where a broadcasting organisation transmits its programme-carrying signals to a satellite in accordance with the instructions of a digital television supplier which is independent of the broadcasting organisation, after which those signals are beamed down, with the consent of the broadcasting organisation, as part of a package of television programmes and therefore bundled, to the satellite television supplier’s subscribers, who are able to view the programmes simultaneously and unaltered by means of a decryption card or smart card provided by the satellite television supplier?"

The queries arise in the context of a claim by collecting societies against TV Vlaanderen over satellite broadcasts. As a newsletter of Van Bael & Bellis explains:

“At first instance, TV Vlaanderen was ordered to compensate the right holders for the public communication of their works. On appeal TV Vlaanderen argued that the services which it provides form an integral part of the original satellite broadcasting by the broadcasting companies. Since the broadcasting companies acquired the rights to broadcast the programmes by satellite in their countries of origin, TV Vlaanderen maintained that it cannot be held to pay a second time for the same communication. Sabam and Agicoa contested TV Vlaanderen’s position arguing that, based on Article 11bis of the Berne Convention of 24 July 1971, two consecutive communications to the public are involved.”