Sunday 5 January 2014

Portuguese pub ruling: no need for licence for extra speakers

From our friend Pedro Malaquias comes news of a Portuguese Supreme Court of Justice decision which, in brief established that the transmission of broadcasts containing protected works in cafés and pubs was not a “communication to the public". Pedro writes:
Portuguese Conspiracy? Not
quite: this pub's in London
"This decision (Supreme Court of Justice Ruling no. 15/2013, File no. 124/11.9GAPVL.G1 -A.S1, 3rd Section) is dated 13 November 2013, but was only published on 16 December 2013. Importantly, it is an “Acórdão de Fixação de Jurisprudência” (a decision aimed at resolving conflicting decisions of the appeal courts by establishing the interpretation of the Supreme Court.  This decision does not bind lower courts, but the likelihood of lower courts deciding against it in the future is reduced and require extensive substantiations. Decisions that run contrary to such a ruling will always be appealed to the Supreme Court of Justice, which may simply apply its previous decision.


The case is a criminal one. It started on 6 March 2011, following a police inspection of a cafe/pub, in which there were 10 customers. In this place, a television music channel transmission was being reproduced through a TV set connected to three speakers spread through the premises. Since the owner of the establishment had not obtained an authorisation from the collection societies to broadcast protected works, the equipment was seized and criminal proceedings were brought against the owner of the premises.

No information is provided in relation to the first instance decision, but the appeal court (the Tribunal da Relação de Guimarães) decided that this behaviour was not punishable, as the use of speakers did not constitute a retransmission of the signal and therefore did not require the copyright holders’ authorisation.

As this decision directly contradicted another one issued by the same court, the Public Attorney filed an appeal against it (no other appeal had been filed). In this decision it was stated that, if the owner of the establishment had not connected any speakers to the TV set, no criminal offence existed.

The Supreme Court ruling

The Supreme Court of Justice opened by stating that the question in issue is simply that of ascertaining if the connection of speakers to a television, with the objective of spreading/ amplifying its output in public premises, requires an authorisation, in the absence of which the person responsible for the act commits the criminal offence of usurpation, under Article 195(1) of the Author’s Right and Related Rights Code (unless otherwise stated, all provisions cited here are from this Code).

Following some references to the exclusive rights held by an author under the Code (with references to 11bis of the Berne Convention), the Court asked if the listening to or watching of television channels in cafés, restaurants, bars, and other establishments open to the general public determines the need for their owners to obtain an authorisation from the authors of the transmitted works.

In order to decide this question, the court stated that a distinction must be drawn between reception and communication: “reception is the capture by appropriate devices of sound and image signals broadcast by a transmitter. The reception is the terminus of the transmission process and that alone solely justifies it: transmissions are made (broadcast) to the receiver”. The broadcast requires author’s authorisation. But once such authorisation has been granted, the reception is free, that is, the receiver can organise it at its will. What is essential is that it is maintained within the scope of reception.

According to the court, this was different from a work being reused, which occurs when the transmission adds, modifies, or innovates the work. Only in those cases would the author be entitled to a new remuneration. Examples are provided:
- That will usually be the case when the reception is converted itself into a show, organized in public places, around sporting or musical events, whether or not with paid admissions, but publicized, possibly with a special decoration or arrangement of space, all with the view to capture a wider audience, at least wider than the one usually present at the establishment. In this case, the mere reception plan would be abandoned to enter into the plan of creating a show, although one based on the reception of a television show. There is an organisation and a “scenario” that change the normal reception of the show. In this case, we are already under a communication to the public.

- The same solution shall be accepted when dealing with a multiplied reception, as occurs in hotels, in which the reception is communicated to the bedrooms and common areas, which results, further to an exponential amplification of the broadcast signal, in an extra service provided by the hotel to its guests, capable of attracting customers, and, as a result, profits, and, therefore, susceptible of being considered a reuse of the work, entitling the author to a remuneration.
However, that is not the case when the signals are simply received in cafes or pubs, which are open to the public, without an entry fee, in which the reception of television shows will not constitute a particular appeal. Connecting speakers to improve the sound quality or volume throughout the premises does not result in a different legal solution, as long as it does not result in a recreation of the transmitted show.

Based on the above, it was decided that connection to a television set of devices for the amplification of sound, broadcast by a TV channel, in commercial premises, does not constitute a new use of the broadcast work. As a result, its use does not require permission from its author and, therefore, it shall not be capable of resulting in criminal offence provided for in Articles 149, 195 and 197 of the Code.

No mention is made in the entire decision of any EU directives. The only reference to EU case law is made in relation to hotels, in a footnote reference to Case C‑162/10 Phonographic Performance (Ireland) Limited v Ireland; no reference is made to FAPL v QC Leisure.

SPA – Sociedade Portuguesa de Autores –  Portugual's most relevant author’s collecting society, is far from happy with this result, having released public statements in the past few days claiming that this decision goes against both Portuguese and EU law. As a result, it stated that it will keep on collecting royalties in these cases and will make every available political and judicial effort to overturn this decision and to make the Portuguese state liable for it.

According to a 3 January SPA statement, CISAC, STEF (Iceland), TONO (Norway), SABAM (Belgium), SUISA (Swiss), AEPI (Greece), ARTISJUS (Hungry), PRS (UK), ZAIKS (Poland), TEOSTO (Finland), AKM (Austria) and IMRO (Ireland) have expressed support for SPA’s position"
Thanks so much, Pedro!

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