When does a broadcasting organisation not communicate works to the public? CJEU has its say, speaking of "copyrighted" works but not much of "new" public

Last year this very blog reported on a sexy new reference for a preliminary ruling to the Court of Justice of the European Union (CJEU), SBS Belgium v SABAM C-325/14. This case concerned the right of communication to the public within Article 3(1) of Directive 2001/29 (the InfoSoc Directive) as applied to TV programmes transmitted via direct injection. 

The latter concept refers to a two-step process by which a broadcasting organisation transmits its programme-carrying signals ‘point to point’ via a private line to its distributors. At that stage, those signals cannot be received by the general public. The distributors then send the signals, which may or may not be in encrypted form, to their subscribers so that the latter can view the programmes on their television sets, whether or not with the help of a decoder made available by the distributor. Depending on the distributor, those signals are transmitted by satellite, cable, or xDSL line.

This reference arose in the context of litigation between Dutch-language commercial broadcasting organisation SBS Belgium (SBS) and Belgian collecting society SABAM regarding the obligation to pay a fair amount for the transmission of programmes via the technique of direct injection.

According to SABAM, SBS would be the one making an act of communication to the public and, as such, responsible to secure a licence from (and pay the relevant licence fee to) relevant rightholders. 

SBS did not share this view, and instead submitted that only distributors would make an act of communication to the public and would be, as such, responsible for the payment of the relevant remuneration. 

In 2009 the Brussels Commercial Court sided with SABAM and ordered SBS to pay nearly EUR 1m in licence fees. SBS of course appealed the decision, and the Brussels Court of Appeal decided to stay the proceedings and refer the following question to the CJEU:

"Does a broadcasting organisation which transmits its programmes exclusively via the technique of direct injection — that is to say, a two-step process in which it transmits its programme-carrying signals in an encrypted form via satellite, a fibre-optic connection or another means of transmission to distributors (satellite, cable or xDSL-line), without the signals being accessible to the public during, or as a result of, that transmission, and in which the distributors then send the signals to their subscribers so that the latter may view the programmes — make a communication to the public within the meaning of Article 3 of Directive 2001/29?"

Yesterday the CJEU delivered its ruling. It held that:

“a broadcasting organisation does not carry out an act of communication to the public … when it transmits its programme-carrying signals exclusively to signal distributors without those signals being accessible to the public during, and as a result of that transmission, those distributors then sending those signals to their respective subscribers so that they may watch those programmes, unless the intervention of the distributors in question is just a technical means”.

Direct injections?
NOT Mildred's cup of tea

In reaching its decision, the CJEU made a few interesting remarks, whose relevance may go well beyond the sole of topic of direct injection.

First the Court recalled (para 14) how the principal objective of the InfoSoc Directive is to establish a high level of protection of authors. From this it follows that exclusive rights, including communication to the public, must be interpreted broadly.

Then the Court recalled (para 15) its earlier judgment in Svensson [see here for all our Katposts], in which it held that the concept of 'communication to the public' within Article 3(1) of the InfoSoc Directive includes two cumulative criteria: (1) an act of communication of a work; and (2) the communication of that work to a public [although recalling Svensson, interestingly enough in this judgment the CJEU employs the notion of 'new' public only close to the end].

(1) An act of communication

As regards the first requirement, the CJEU noted how this refers to any transmission of a protected work, irrespective of the technical means or process used. 

This said, every transmission or retransmission of a work which uses a specific technical means must, as a rule, be individually authorised by the relevant rightholder.

In the case at hand, SBS transmits programme-carrying signals to several signal distributors by different means. As such, these transmissions must be considered to constitute acts of communication to the public. But are these also communications to a new public?

(2) A communication to a public

By recalling a number of judgments [though not specifically Svensson], the Court held (para 21) that it is "apparent" that the term 'public' refers to an indeterminate number of recipients, potential television viewers, and implies, moreover, a fairly large number of persons.

"Copyrighted"?
Enough to break your heart

In the case at hand, SBS transmits the programme-carrying signals to specified individual distributors without potential viewers being able to have access to those signals. As such, these works are not communicated to a public within the meaning of Article 3(1) of the InfoSoc Directive.

So

Given the cumulative nature of these two criteria, the Court concluded that "where the condition that copyrighted ['copyrighted'??? There is no such thing as a 'copyrighted' work. A work is either protected by copyright or is not: it cannot be copyrighted] works must be communicated to a public is not satisfied, the transmissions made by a broadcasting organisation, such as that in the main proceedings, does not, in principle, come within the definition of ‘communication to the public’, within the meaning of Article 3(1) of Directive 2001/29."

However it may happen that the broadcasting organisation in question does an act of communication. In the case at hand the public consists of all the subscribers to each particular distributor, who are able to watch SBS TV programmes following the intervention of those distributors. Should such intervention be purely technical in nature, then the subscribers of the distributors in question could be considered to be the public for the purposes of the communication made by the broadcasting organisation, with the result that that organisation (SBS) would make a ‘communication to the public’.

This decision may not look like a seminal one in the area of copyright. However, it is quite interesting to see how references to the ‘new’ public criterion appear both sparse and vague …