Norwegian Supreme Court: no "retransmission" without "transmission"

The Supreme Court of Norway has ruled  that a  TV cable distributor  was not retransmitting broadcasts when it received content via an encrypted fibre connection and proceeded to broadcast it to the public.  Norwaco is an umbrella organisation for collecting societies in Norway, with membership including musical and television content producers. Get AS is a distributor of cable services, which does not produce original television content itself, but puts together packages of channels which are offered to subscribers. The subject of the dispute before the Court was the retransmission of music rights on the channel, TV Norge.

Until 2009, Get AS retransmitted encrypted but generally available satellite broadcast from TV channels, including TV Norge. Get AS also received signals for cable broadcasts from other satellite broadcasts. Between 2005-09 the rights for the channels were cleared by Norwaco. In 2009,  the way in which TV Norge signals were received by Get AS changed; having been previously transmitted in satellite signals in the same broadcast that satellite viewers of the channel received directly, the signals were now sent in an encrypted fibre connection. After this technical change, Get AS stopped clearing with Norwaco for retransmission of the TV channels on the basis that they no longer retransmitted the content as per s34 of the Norwegian Copyright Act, and therefore no remuneration was due to the umbrella collecting society.

Get AS then issued a notice of proceedings in 2012,claiming that they were entitled to distribute TV Norge; Norwaco counterclaimed that Get AS must pay compensation for retransmission. The Oslo District Court and Bogarting Court of Appeal agreed with Get AS that they were entitled to distribute the channels and that no compensation was due. The Supreme Court of Norway agreed, dismissing the appeal, ordering Norwaco to pay 1,026,565 Kroner (around 92,000 GBP).

The relevant law

The key applicable legislation  was §34 Norway's Copyright Act, which provides that: 

“Work that is lawfully included in the broadcast may, through simultaneous and unaltered retransmission, be made available to the public when the party who retransmits meets the conditions of the extended collective licence pursuant to section 36, subsection 1.

The author's exclusive right to retransmission may only be exercised through an organisation that has been approved pursuant to section 38a.”

[This translation is taken from the translation of the judgment; Norwaco  is  an approved organisation for the purposes of §38a]

Also integral to the reasoning of the Supreme Court was the  interpretation of Article 11bis of the Berne Convention, which sets out the exclusive rights of authors to authorise broadcasting and communications to the public,  but which leaves it to the Member States to provide in their local legislation the conditions under which the rights may be exercised.

The issues

Transmission or retransmission? IPKat is not sure
he can tell the difference

Norwaco argued that an author has the exclusive right to dispose of their own works, including authorisation of retransmission, which must  be cleared with collecting societies. They argued that the decisive factor when applying §34 is not whether there has been a retransmission of the same physical signal broadcast via cable, and that the Court of Appeal erred in interpreting the EU's SatCab Directive 93/83/EEC as implying that there must have been an initial broadcast in order for the signal to be retransmitted.

Get AS argued that retransmission  assumes that there has been a prior broadcast; §34 is a relevant limitation of author’s exclusive rights. The transmission of the copyright-protected content must be cleared, but under the agreement between Get AS and the TV-producing companies it is the producers that must ensure the necessary clearances are in place. This, argued Get AS, removes the need for an extended collective license agreement if the broadcaster is willing and able to clear the rights directly  with the rightholders. A terrestial network, satellite, cable and internet distribution of content can all be primary channels; as such, the transmission by Get AS is  not properly construed as a retransmission of a broadcast, which originally happens on a different primary platform.

Justice Webster concluded that the correct application of §34 is where there is a lawful broadcast of the content, transmitted to the public simultaneously and unaltered.  Stated otherwise, there cannot be a retransmission without a transmission:

 “[T]he term “broadcasting transmission” herein implies that the work must have been transmitted by TV or radio signals that have been intended for the public”.

The signals received by Get AS were sent encrypted over fibre optic cable, that is, not in a medium of transmission intended or accessible for the public, and were therefore not retransmitted.

If there had been a retransmission, then §34 provides that the author must exercise his exclusive rights through  an approved collective arrangement, such as Norwaco. The effect of Article 11bis of Berne is to give a legal basis to handing over copyright protection to collecting societies, as a limitation on the rights of individual authors – but, as §34 provides, this has been limited to retransmission.

As Justice Webster makes clear, the typical case envisaged by §34 is where broadcasts are transmitted “over-the-air” and picked up in a neighbouring country, and this is indeed an issue which has been faced by Norway, Sweden, and the Nordic Countries in the past. Signals transmitted from communication satellities between the states as a solution were not broadcast to the general public and therefore their transmission onward to audiences was not treated as retransmission within Article 11bis of Berne. Similarly the SatCab Directive, part of the EEA Agreement, does imply that for retransmission to take place, there needs to be an original transmission.

This is not to say that Get AS are relieved of any obligation to clear copyright authorisation, but it is the responsibility of SBS broadcasting, and, as expressd above, is negotiated with original rightholders rather than through the collection society. Get AS is independently responsible if SBS fails to do so. 

In a dissenting judgment, Justice Arntzen argued  that copyright should be technologically neutral. He considered that retransmission should be understood broadly to relate to the  copyrighted content without emphasis being placed on the actual signals broadcast. Since the ultimate copyrighted content of the broadcast is the same, there would be a retransmission of signals when they are broadcast by Get AS, notwithstanding that they were received by Get via an encrypted communication. For Justice Arntzen, that the signals were received in closed transmissions and not available to the public was not a significant factor for which reason to ‘discriminate’ when determining whether a retransmission had taken place.  

Comment

This judgment has the apparent potential to undermine the position of collecting societies and umbrella groups such as Norwaco. If transmissions of the same intellectual content sent to distributors via fibre optic encryption and then broadcast publicly on usual cable connections are not characterised as retransmissions, revenue could be channelled away from collecting societies, with a shift towards the rightholders negotiating content distribution for themselves. 

There are additional possible considerations of compliance with international obligations including Berne and TRIPS which may arise in a future dispute which speaks to the fundamental aspects of the author's exclusive rights, but were not examined in detail in this case. What do Kat readers think - will transmission/retransmission disputes rear up in the era of simultaneous internet television transmission?