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Wednesday, 7 July 2010

Importing non-UK decoders into the EU: a multiplicity of questions

No case with number can be found on the Curia website, but if you visit the website of the UK's Intellectual Property Office you will find here a notice regarding Case C-228/10 Union of European Football Associations (UEFA) and British Sky Broadcasting Limited v Euroview Sport Ltd. According to the IPO, this case -- the background to which you can read, courtesy of the IPKat here -- raises the following questions which are being sent to the Court of Justice of the European Union for a preliminary ruling:

"A. On the interpretation of Directive 98/84 ... on the legal protection of services based on, or consisting of, conditional access

Q.1 Illicit Device

(a) Where a conditional access device is made by or with the consent of a service provider and sold subject to a limited authorisation to use the device only to gain access to the protected service in particular circumstances, does that device become an "illicit device" within the meaning of Art. 2(e) of Directive 98/84 if it issued to give access to that protected service in a place or in a manner or by a person outside the authorisation of the service provider?

(b) What is the meaning of "designed or adapted" within Article 2(e) of the Directive?

Q.2 Cause of Action

When a first service provider transmits programme content in encoded form to a second service provider who broadcasts that content on the basis of conditional access, what factors are to be taken into account in determining whether the interests of the first provider of a protected service are affected, within the meaning of Article 5 of Directive 98/84?

In particular,

Where a first undertaking transmits programme content (comprising visual images, ambient sound and English commentary) in encoded form to a second undertaking which in turn broadcasts to the public the programme content (to which it has added its logo and on occasion an additional audio commentary track):

(a) Does the transmission by the first undertaking constitute a protected service of "television broadcasting" within the meaning of Article 2(a) of Directive 98/84 and Article 1(a) of Directive 89/552 [on the coordination of certain provisions relating to the pursuit of TV broadcasting activities]?

(b) Is it necessary for the first undertaking to be a broadcaster within the meaning of Article 1(b) of Directive 89/552 in order to be considered as providing a protected service of television broadcasting within the first indent of Article 2(a) of Directive 98/84?

(c) Is Article 5 of Directive 98/84 to be interpreted as conferring a civil right of action on the first undertaking in respect of illicit devices which give access to the programme as broadcast by the second undertaking either:

(i) because such devices are to be regarded as giving access via the broadcast signal to the first undertaking's own service; or

(ii) because the first undertaking is the provider of a protected service whose interests are affected by an infringing activity (because such devices give unauthorised access to the protected service provided by the second undertaking)?

(d) Is the answer to (c) affected by whether the first and second service providers use different decryption systems and conditional access systems?

B. On the interpretation of Directive 2001/29 ... on the harmonisation of certain aspects of copyright and related rights in the information society

Q.3 Article 6 Directive 2001/29/EC - Technological Measures

In circumstances where:

(i) copyright works are included in a satellite broadcast

(ii) the broadcast is transmitted in encrypted form

(iii) only for access to the satellite broadcaster's subscribers

(iv) subscribers are provided with a decoder card which allows them to access the broadcast

(a) Does encryption constitute "technological measures" within the meaning of Article 6(3) of Directive 2001/29? If so, is it also "effective" within the meaning of Article 6(3) of Directive 2001/29?

(b) Does the use of a decoder card, which has been issued by the organisation making the satellite broadcast to a customer pursuant to a subscription agreement in a first Member State in order to obtain access in a second Member State to the broadcast and the copyright works included in the broadcast, amount to "circumvention" of such technological measures in circumstances where the broadcasting organisation does not consent to such use of the decoder card?

(c ) Is a trader who imports decoder cards into the second Member State and advertises them for sale and use there to be regarded as importing or advertising devices, or providing services, which:-

(i) are promoted, advertised or marketed for the purpose of circumvention within Article 6(2)(a) of the Directive?

(ii) have only a limited commercially significant purpose or use other than to circumvent within Article 6(2)(b) of the Directive?

(iii) are primarily designed, produced, adapted or performed for the purpose of enabling or facilitating circumvention within Article 6(2)(c) of the Directive?

(d) Are the above circumstances excluded from the scope of Article 6 of Directive 2001/29 by reason of the fact that they are more specifically covered by Directive 98/84?

Q.4 Reproduction Right

Where sequential fragments of a film, broadcast, literary work, musical work or sound recording (in this case frames of digital video and audio) are created (i) within the memory of a decoder or (ii) in the case of a film, broadcast and literary work on a television screen and the whole work is reproduced if the sequential fragments are considered together but only a limited number of fragments exist at any point in time:

(a) Is the question of whether those works have been reproduced in whole or in part to be determined by the rule of national copyright law relating to what constitutes an infringing reproduction of a copyright work or is it a matter of interpretation of Article 2 of Directive 2001/29?

(b) If it is a matter of interpretation of Article 2 of Directive 2001/29, should the national court consider all of the fragments of each work as a whole or only the limited number of fragments which exist at any point in time? If the latter, what test should the national court apply to the question of whether the works have been reproduced in substantial part within the meaning of that Article?

(c) Does the reproduction right in Article 2 of Directive 2001/29 extend to the creation of transient images on a television screen?

Q.5 Independent Economic Significance

(a) Are transient copies of a work created within a satellite television decoder box or on a television screen linked to the decoder box whose sole purpose is to enable a use of the work not otherwise restricted by law to be regarded as having "independent economic significance" within the meaning of Article 5(1) of Directive 2001/29 by reason of the fact that such copies provide the only basis upon which the rights holder can extract remuneration for the use of his rights?

(b) Is the answer to Question 5(a) affected by (i) whether the transient copies have any inherent value or (ii) whether the transient copies comprise a small part of a collection of works and/or other subject matter which otherwise may be used without infringement of copyright or (iii) whether the exclusive licensee of the rights holder in another Member State has already received remuneration for use of the work in that Member State?

Q.6 Communication to public by wire or wireless means

(a) Is a copyright work communicated to the public by wire or wireless means within the meaning of Article 3 of Directive 2001/29 where a satellite broadcast is received at a commercial premises for example a bar and communicated or shown at those premises via a single television screen and speakers to members of the public present?

(b) Is the answer to Question 6(a) affected if:

(i) the members of the pubic present constitute a new public not contemplated by the broadcaster (in this case because a domestic decoder card for use in one Member State is used for a commercial audience in another Member State)?

(ii) The members of the public are not a paying audience according to national law?

(c) If the answer to any part of (b) is Yes, what factors should be taken into account in determining whether there is a communication of the work which has originated from a place where members of the audience are not present?

C. On the interpretation of Directive 2006/115 ... on rental right and lending right and on certain rights related to copyright in the field of intellectual property

Q.7 Fixation Right

Where sequential fragments of a broadcast (in this case frames of digital video and audio) are created (i) within the memory of a decoder or (ii) on a television screen and an extensive section of the broadcast is reproduced if the sequential fragments are considered together but only a limited number of fragments exist at any point in time:

(a) Is the question of whether those sequential fragments are a fixation of the broadcast to be determined by the rule of national copyright law relating to what constitutes an infringing reproduction of a copyright work or is it a matter of interpretation of Article 7 of Directive 2006/115)?

(b) If it is a matter of interpretation of Article 7 of Directive 2006/115, can such transient copies be considered a "fixation" at all, and if so should the national court consider all of the fragments of each work as a whole or only the limited number of fragments which exist at any point in time? If the latter, what test should the national court apply to the question of whether the a fixation of the broadcast has been made within the meaning of that Article?

(c) Does the fixation right in Article 7 of Directive 2006/115 extend to the creation of transient images on a television screen?

D. On the interpretation of Council Directive 93/83 ... on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable transmission and of Articles 34 and 36 and 56 TFEU

Q.8 Defence under Directive 93/83

Is it compatible with Directive 93/83 or with Articles 34 and 36 or 56 TFEU if national copyright law provides that when transient copies of works included in a satellite broadcast or of the broadcast itself are created inside a decoder box or on a television screen, there is an infringement of copyright under the law of the country of reception of the broadcast?

Does it affect the position if the broadcast is decoded using a satellite decoder card which has been issued by the provider of a satellite broadcasting service in another Member State on the condition that the satellite decoder card is only authorised for use in that other Member State?

Q.9 Whether UEFA is a broadcaster under Directive 93/83

Where an organisation ("the First Organisation") either transmits or has transmitted on its behalf, signals carrying visual images and audio feed from a live sporting event via an encrypted satellite multilateral feed to an authorised group of broadcasters in different countries, and those broadcasters then transmit (either by terrestrial TV signals or by satellite) programmes of the live sporting event containing the visual images and audio feed but also their own station identifying logo and (according to their own editorial discretion) their own audio commentaries and their own materials during before and after match play and during half-time breaks ("the Downstream Programmes"):-

(a) Does the encrypted multilateral feed constitute a 'communication to the public by satellite' within Article 1(2)(a) and 1 (2)(c) of Directive 93/83, where decryption means for the feed itself are not made available to the public, but decryption means are made available to decrypt the signals carrying the Downstream Programmes where they are carried by satellite and the Downstream Programmes are unencrypted where they are transmitted from terrestrial transmitters?

(b) Is the First Organisation introducing into its multilateral feed "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"?

(c) Where Article 1 (2)(a) refers to the act of introducing being "under the control and responsibility of the broadcasting organisation", is the First Organisation the or a relevant broadcasting organisation for this purpose, or alternatively can the signals be regarded as being introduced into the multilateral feed under the control and responsibility of the downstream broadcasters?

E. On the interpretation of the Treaty rules on free movement of goods and services under Article 34 and 36 and 56 TFEU in the context of the Conditional Access Directive and of Article 6 of Directive 2001/29.

Q.10 Defence under Article 34 and/or 56 TFEU

(a) If the answer to Question 1 is that a conditional access device made by or with the consent of the service provider becomes an illicit device within the meaning of Article 2(2) of Directive 98/84 when it is used outside the scope of the authorisation of the service provider to give access to a protected service, what is the specific matter of the right by reference to its essential function conferred by the Conditional Access Directive?

(b) Do Article 34 or 56 TFEU preclude enforcement of a provision of national law in a first Member State which makes it unlawful to import or sell a satellite decoder card which has been issued by the provider of a satellite broadcasting service in another Member State on the condition that the satellite decoder card is only authorised for use in that other Member State?

(c) Is the answer affected if the satellite decoder card is authorised only for private and domestic use in that other Member State but used for commercial purposes in the first Member State?

(d) If the answer to Question 3 is that the use of a decoder card in the circumstances stated in that Question amounts to the circumvention of an effective technological measure, do Articles 34 or 56 TFEU nonetheless preclude the enforcement of a provision of national law transposing Article 6 of Directive 2001/29/EC?

Q.11 Whether the protection afforded to the musical and literary works can be broader than that afforded to the rest of the broadcast

(a) Do Articles 34 and 36 or 56 TFEU preclude enforcement of a provision of national copyright law which makes it unlawful to perform or play in public a musical work where that work is included in a protected service which is accessed and played in public by use of a satellite decoder card where that card has been issued by the service provider in another Member State on the condition that the decoder card is only authorised for use in that other Member State? Does it make a difference if the musical work is an unimportant element of the protected service as a whole and the showing or playing in public of the other elements of the service are not protected by national copyright law?

(b) Do Articles 34 and 36 or 56 TFEU preclude enforcement of a provision of national copyright law which makes it unlawful to perform or play in public literary works where those works are included in a protected service which is accessed and played in public by use of a satellite decoder card where that card has been issued by the service provider in another Member State on the condition that the decoder card is only authorised for use in that other Member State? Does it make a difference if the literary works are an unimportant element of the protected service as a whole and the showing or playing in public of the other elements of the service are not protected by national copyright law?

F. On the interpretation of the Treaty rules on competition under Article 101 TFEU

Q.12 Defence under Article 101 TFEU

Where a programme content provider enters into a series of exclusive licences each for the territory of one or more Member States under which the broadcaster is licensed to broadcast the programme content only within that territory (including by satellite) and a contractual obligation is included in each licence requiring the broadcaster to prevent its satellite decoder cards which enable reception of the licensed programme content from being used outside the licensed territory, what legal test should the national court apply and what circumstances should it take into consideration in deciding whether the contractual restriction contravenes the prohibition imposed by Article 101(1) TFEU?

In particular,

(a) Must Article 101(1) TFEU be interpreted as applying to that obligation by reason only of it being deemed to have the object of preventing, restricting of distorting competition?

(b) If so, must it also be shown that the contractual obligation appreciably prevents, restricts or distorts competition in order to come within the prohibition imposed by Article 101(1) TFEU?"
The IPKat is horrified to note that, if you would like to pass your comments on this case to the IPO by emailing that august body here, you've only got until 13 July 2010 to do so. The closing date for the making of observations to the Court of Justice is 13 September 2010 -- which gives some lucky civil servants and interested parties just about enough time to read the questions, try to understand them and then submit their thoughts.

UEFA here
EUFA here
UFFA here and here

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