Transmission not accessible to the public "not a communication to the public", rules court

The Court of Justice of the European Union (CJEU) gave its ruling yesterday in Case C‑325/14, SBS Belgium NV v Belgische Vereniging van Auteurs, Componisten en Uitgevers (SABAM), on a reference for a preliminary ruling from the hof van beroep te Brussel (Brussels Court of Appeal, Belgium). The reference was received at the CJEU on 7 July 2014, so this ruling is quite a speedy one -- the sign of a case that the CJEU can handle with the need to break into a judicial sweat.

In short SABAM, a copyright administration society which is no stranger to litigation, represents authors in relation to the grant of permission for third party use of their copyright-protected works and in the collection of the fees for such use. SBS, a Dutch-language commercial broadcasting organisation, makes and markets TV programmes. as a broadcaster SBS runs several private commercial transmitters in Belgium. Its programme schedule includes both programmes which it has produced itself and those it gets from third parties.

SBS broadcasts its programmes exclusively by "direct injection", a two-step process by which programme-carrying signals travel ‘point to point’ via a private line to its distributors such as Belgacom, Telenet and TV Vlaanderen. At that stage, those signals cannot be received by the general public. The distributors then send the signals (encrypted or otherwise) to subscribers who view them on their TV sets, sometimes with the aid of a decoder made available by the distributor. Depending on the distributor, those signals are transmitted by satellite (TV Vlaanderen), cable (Telenet) or xDSL line (Belgacom). 8

Said SABAM, as a broadcasting organisation SBS makes a communication to the public within the meaning of Article 3 of Directive 2001/29 [the InfoSec Directive] by transmitting via the direct injection method. Accordingly SBS needs the authorisation of the copyright holders is required.  No way, said SBS: only distributors and other organisations of the same type make a communication to the relevant public in relation to copyright.

The rechtbank van koophandel te Brussel (Commercial Court, Brussels) allowed SABAM’s application and ordered SBS to pay close to a million euros in copyright fees for 2009. SBS appealed to the referring court, which decided to stay the proceedings and to refer the following question to the Court for a preliminary ruling:

‘Does a broadcasting organisation which transmits its programmes exclusively via the technique of direct injection — that is to say, a two-step process in which it transmits its programme-carrying signals in an encrypted form via satellite, a fibre-optic connection or another means of transmission to distributors (satellite, cable or xDSL-line), without the signals being accessible to the public during, or as a result of, that transmission, and in which the distributors then send the signals to their subscribers so that the latter may view the programmes — make a communication to the public within the meaning of Article 3 of Directive 2001/29?’

Yesterday the Ninth Chamber of the CJEU ruled thus (with the main message in bold):

Article 3(1) of Directive 2001/29 ... must be interpreted as meaning that a broadcasting organisation does not carry out an act of communication to the public, within the meaning of that provision, when it transmits its programme-carrying signals exclusively to signal distributors without those signals being accessible to the public during, and as a result of that transmission, those distributors then sending those signals to their respective subscribers so that they may watch those programmes, unless the intervention of the distributors in question is just a technical means, which it is for the national court to ascertain.

To quote the CJEU's own words:

"21 ... it is apparent from the Court’s case-law that the term ‘public’ refers to an indeterminate number of recipients, potential television viewers, and implies, moreover, a fairly large number of persons (see, to that effect, judgments in SGAE, C‑306/05, EU:C:2006:764, paragraphs 37 and 38, and ITV Broadcasting and Others, C‑607/11, EU:C:2013:147, paragraph 32).

22 However, in a situation such as that before the court in the main proceedings, as is clear from the question referred for a preliminary ruling, the broadcasting organisation in question transmits the programme-carrying signals to specified individual distributors without potential viewers being able to have access to those signals.

23 Consequently, the works transmitted by the broadcasting organisation, such as the organisation in the main proceedings, are communicated not to the ‘public’, within the meaning of Article 3(1) of Directive 2001/29, but to specified individual professionals.

24 Given the cumulative nature, referred to in paragraph 15 of this judgment, of the two criteria for a communication to the public, where the condition that copyrighted [this blogger does hope that this Americanism, inappropriate for works which are automatically protected by copyright without any need for formalities, will not catch on in Europe] works must be communicated to a public is not satisfied, the transmissions made by a broadcasting organisation, such as that in the main proceedings, does not, in principle, come within the definition of ‘communication to the public’, within the meaning of Article 3(1) of Directive 2001/29".

Fellow blogger Eleonora's more detailed analysis of this somewhat sparse 34-paragraph decision can be found on the IPKat here.