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Sunday, 24 August 2014

When a TV programme is transmitted via direct injection, who makes the act of communication to the public?

Not to worry:
a direct injection
of copyright cases
is already in sight
With the summer break close to an end, new copyright adventures are just about to happen at the Court of Justice of the European Union (CJEU) for the joy of aficionados everywhere in the EU and beyond.

While the first copyright decision will be that in Case C-201/13 Deckmyn (notion of parody under Article 5(3)(k) of the InfoSoc Directive[herehere and here] on 3 September, last Friday the UK Intellectual Property Office circulated notice of a new case that has made its way to everybody's favourite court.

It is Case C-325/14 SBS Belgium, a reference from ... Belgium, seeking clarification as to the following:

Does a broadcasting organisation which transmits its programmes exclusively via the technique of direct injection [...] make a communication to the public within the meaning of Article 3 of [the InfoSoc Directive]?

First of all, what does "direct injection" mean?

Direct injection refers to the situation where the broadcasting company connects to the network of one or more cable companies directly. The programme in question is not first broadcast via ether or satellite and then retransmitted via cable as usually is the case, but is broadcast for the first time via cable.

So the question referred to the CJEU is not about whether there is an act of communication to the public, but rather who makes it: is it the broadcaster, even if it does not broadcast directly to the public? Is it the subject (different from the broadcaster) who broadcasts it for the first time via cable? Is it both?

Who knows.

A thorough explanation of the background to this case can be found on helpful EU resource EU Law Radarwhere - quite interestingly - this reference made its first appearance on 9 July last.

Why is that interesting? Because the UK IPO circulated its notice only two days ago. This would not be too bad, if not for the fact that those who wish to comment on this case must hurry up: the deadline for emailing your thoughts to is in fact 4th September 2014.

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