Friday 24 March 2017

Cable retransmission within reception area copyright free?!

A few days ago the Court of Justice of the European Union (CJEU) issued yet another judgment on the right of communication to the public within Article 3(1) of the InfoSoc Directive: it is Staatlich genehmigte Gesellschaft der Autoren, Komponisten und Musikverleger registrierte Genossenschaft mbH (AKM) v Zü Betriebs GmbH, C-138/16.

In a reference for a preliminary ruling from the Commercial Court of Vienna, the CJEU was asked to determine whether the transmission of broadcasts by “communal antenna installations” is subject to the authorisation of the relevant rightholder in that it falls within the scope of Article 3(1) of the InfoSoc Directive. 

The 1709 Blog is delighted an analysis of the decision by Professor Dirk Visser (Leiden University), which has also been pubished on the Leiden Law Blog.

Here's what Professor Visser writes:

"Is cable retransmission within the reception area of the original broadcast copyright free? 

In a ruling on 16 March 2017 the CJEU seems to answer this question in the affirmative. If this is indeed the case, it constitutes a new ‘game changer’. It implies that there would no longer be a need to pay for the cable retransmission of national television programmes from for example the Dutch national public broadcaster NPO and the commercial broadcasters RTL and SBS.

According to the CJEU, there is no copyright-relevant ‘communication to the public’ in the case of "simultaneous, full and unaltered transmission of programmes broadcast by the national broadcasting corporation, by means of cables on national territory […] provided that it is merely a technical means of communication and was taken into account by the author of the work when the latter authorised the original communication". In this case, according to the Court, there is no ‘new public’, and therefore no copyright-relevant communication which requires separate permission from the rightholders.

Prof Visser
In the early 1980s, the Dutch Supreme Court (Hoge Raad) ruled that in the case of cable retransmission within the reception area, there is a ‘communication to the public’. The Dutch Supreme Court decided that a ‘new public’ was not required; the only thing that mattered was if there was another ‘organization’ involved, for example the operator of a central antenna installation. Later, the copyright status of cable retransmission was codified in a separate EU Directive.

In recent years the CJEU has introduced the ‘new public’ criterion again, but reframed the criterion and explained that in most cases there is a ‘new public’. In cases of cable retransmission or broadcasts in hotels, cafes, spas and rehabilitation centres, there is always a ‘new public’ that was ’not taken into account by the author of the work when the latter authorised the original communication’.

Internet retransmission of a TV signal within the reception area of the original broadcast was, according to the Court, relevant to copyright anyway because this was a different transmission technology. Whether or not a new public is reached would be irrelevant here.

But now suddenly the CJEU has found that people in Austria who just watch the public service channel via cable, have already been taken into account in the satellite and terrestrial broadcast, and therefore no permission or payment is required for this type of transmission. This is an understandable argument in itself, but it is certainly contrary to what has been assumed in the legislation and case law over the past twenty to thirty years. The ‘other technique’ of cable retransmission is apparently irrelevant.

The CJEU decided in this case without the opinion of the Advocate-General in a small chamber, so maybe it is a slip. If not, this could be a real game changer in the area of audio-visual copyright."


Anonymous said...

Like Prof Visser, and no doubt many equally eminent readers, I am much perplexed by what part one of the Court's judgment means for earlier acquis, such as SGAE v Rafeal Hoteles SA (C-306/05) and various other similar cases. And also, it seems to me, there are implications for shops and offices etc which provide live radio or television for their customers/staff for which they currently have to pay an annual licence fee. Surely if the CJEU are right (and who am I to doubt their wisdom?) that those who authorise a national broadcaster to broadcast their copyright works envisage the whole population of the country as the potential public (here I'm paraphrasing [28] and [29] of the judgment), then surely that applies also in the context of the barber's shop which is showing daytime television to its clients. Part two of the Court's answer really only applies to the specifics of Austrian law and in any case it would only negate the part one finding in circumstances such as transmissions originating outside the authorised territory (shades of FAPL v Murphy here perhaps?). But in the examples I mentioned, the part two finding has no effect since the Court says no new public is involved, therefore the Article 3 rights of the copyright owner are not affected.

Eleonora, we need another of your matrices to show how the various cases dealing with transmission/retransmission stack up!

Anonymous said...

As usual the CJEU opines on what rightholders have or have not authorized without reading the relevant contracts, which should have the potential to clarify what is or is not licensed. What remarkable transcendental powers they have! The arbitrariness of this is staggering. Do they not do contract law? Too prosaic and certain perhaps...

Anonymous said...

I would also appreciate Eleonora's analysis of this.

To me, this seems like a more logical ruling than TV Catchup I, as it follows the general approach of Communication? - Public? - New public? - which is now well-established, rather than the somewhat unique Communication? - Public? - Different technical means? - approach in TVC1.

Eleonora Rosati said...

The ruling is interesting (yet at odds with existing case law), and I will try and analyse it by the end of the week