Airfield v Sabam: just when you thought the Kats forgot ...

Deep in thought, the IPKat wondered about that
satellite TV service for felines: should it be called
the KatSat or the Katellite ...?

While this weblog's Past Historic series has focused on relatively distant events in intellectual property history, it is occasionally necessary to delve into the subject's more recent past.  A month ago, while this member of the Kat team took a brief break, something happened which completely escaped his attention: the Court of Justice of the European Union gave judgment in Joined Cases C‑431/09 and C‑432/09, Airfield NV, Canal Digitaal BV v Belgische Vereniging van Auteurs, Componisten en Uitgevers CVBA (Sabam) and Airfield NV v Agicoa Belgium BVBA.  Both of these cases are references for a preliminary ruling from the Belgian hof van beroep te Brussel -- and this Kat is ashamed to confess that, with the exception of a brief flash of recognition when the Advocate General's non-English Opinion came out in March, these cases and he have remained perfect strangers.

But what are they about? Airfield, a Belgian company which traded as TV Vlaanderen, was a satellite television provider which offered the public a package of satellite channels that can be heard and viewed together by subscribers using a satellite decoder. This package included two types of TV channel: (i) free-to-view and (ii) encrypted channels which could only be viewed by customers who bought Airfield's decoder card, conveniently provided by Airfield's Dutch sister company Canal Digitaal, which in turn hired capacity for making digital transmissions via the Astra satellite.

Canal Digitaal later undertook to sublease the Astra satellite's capacity to Airfield so that it could broadcast TV and radio programmes in Belgium and Luxembourg. Canal Digitaal also agreed to provide all the necessary technical services -- uplinking, multiplexing, compressing, scrambling and data transmission.

The first Belgian satellite broadcast decoder (1958) was an impressive device,
but few TV viewers had a back garden
big enough to accommodate it

With the technical framework in place, Airfield then struck deals with broadcasting organisations whose channels were included in its satellite package, for the direct or indirect broadcasting of their programmes. The broadcasting organisations paid Airfield a fee for these services and also authorised Airfield to broadcast their programmes for simultaneous viewing.  In return, Airfield paid them a fee which took into account the number of subscribers and programmes broadcast in the territory concerned.

This all sounds fine. So what could go wrong? Enter Sabam -- the feared and fabled Belgian copyright collecting society -- together with Agicoa, which does for producers of audiovisual works much the same sort of things as Sabam does for authors (basically, granting rights and then collecting and distributing income derived from them). Sabam and Agicoa said that, since Airfield was rebroadcasting TV programmes which had already transmitted by the broadcasting organisations, Airfield needed their authorisation to rebroadcast.. Airfield and Canal Digitaal disagreed, saying that they didn't carry out rebroadcasting but only offered the public the chance to receive TV programmes by satellite on behalf of organisations which broadcast them, via a once-off satellite broadcast by the broadcasting organisations themselves. All they were doing was providing a technical facility anyway, since it was the broadcasting organisations alone who were carrying out activities which required copyright permission under Belgian law.

So off to court they all went.  The trial court held Airfield and Canal Ditigaal liable as infringers; they appealed to the hof van beroep te Brussel which in turn referred the following questions to the Court of Justice:

‘(1) Does Directive 93/83 [the Satellite Broadcasting and Cable Retransmission Directive] preclude the requirement that the supplier of digital satellite television must obtain the consent of the right holders in the case where a broadcasting organisation transmits its programme-carrying signals, either by a fixed link or by an encrypted satellite signal, to a supplier of digital satellite television which is independent of the broadcasting organisation, and that supplier has those signals encrypted and beamed to a satellite by a company associated with it, after which those signals are beamed down, with the consent of the broadcasting organisation, as part of a package of television channels and therefore bundled, to the satellite television supplier’s subscribers, who are able to view the programmes simultaneously and unaltered by means of a decoder card or smart card provided by the satellite television supplier? 

(2) Does Directive 93/83 preclude the requirement that the supplier of digital satellite television must obtain the consent of the right holders in the case where a broadcasting organisation transmits its programme-carrying signals to a satellite in accordance with the instructions of a digital satellite television supplier which is independent of the broadcasting organisation, after which those signals are beamed down, with the consent of the broadcasting organisation, as part of a package of television channels and therefore bundled, to the satellite television supplier’s subscribers, who are able to view the programmes simultaneously and unaltered by means of a decoder card or smart card provided by the satellite television supplier?’

This very October, the Court gave judgment and said as follows:

"Article 2 of ... Directive 93/83 ... must be interpreted as requiring a satellite package provider to obtain authorisation from the right holders concerned for its intervention in the direct or indirect transmission of television programmes, such as the transmission at issue in the main proceedings, unless the right holders have agreed with the broadcasting organisation concerned that the protected works will also be communicated to the public through that provider, on condition, in the latter situation, that the provider’s intervention does not make those works accessible to a new public".

Says the IPKat, the proviso in the ruling -- "unless (i) the right holders have agreed with the broadcasting organisation concerned that the protected works (ii) will also be communicated to the public through that provider, (iii) on condition, in the latter situation, that the provider’s intervention does not make those works accessible to a new public" -- makes good reading for right holders and their representative organisations.  Effectively there is no non-consensual broadcasting and the provider's intervention may only fall within the scope of what the licence actually contemplates so far as an audience is concerned.

Merpel wants to return to the words "new public". At paragraph 72 the Court describes it as

" a public which was not taken into account by the authors of the protected works within the framework of an authorisation given to another person".

As yesterday's Katpost pointed out, Mr Justice Floyd was not enchanted by the notion of "new public" or by the degree of imprecision which it produced.  Referring the TvCatchup case for a preliminary ruling, notwithstanding the ruling here in Airfield he said:

"23. ... The extent to which the creation of a new link from the broadcasting organisation to the subscriber is to be equated, without more, with the creation of a “new public” is not clear. It is also not clear whether the subscribers in the present case can be described as “unable to enjoy the broadcasts although physically within the catchment area”, given that they are entitled to receive the original broadcast in their own homes and on their laptops without intervention from TVC. Equally it is not clear whether the audience reached by these broadcasts is an audience which is additional to the public targeted by the broadcasting organisation concerned".

Merpel thinks she could live quite comfortably with Airfield and its uncertainty.  "New public" is not difficult to understand: it's just that it's a negative concept rather than a positive one: it's whichever folk the parties to the copyright licence weren't thinking about at the time. This approach is quite flexible and continental lawyers in Europe seem well equipped to deal with it.  Another example of a negative concept relates to "likelihood of confusion" in European trade mark law, where the negative formula of "it cannot be excluded" that there will be confusion between marks sounds awkward to English ears but appears to work quite well in practice.

Airfields here
Airplane here
Airport here
Airdrie here