When the company Airfield (now called Eviso) started offering satellite television services in Belgium under the brands TV Vlaanderen and (later) TéléSat, it was sued by two collecting societies which claimed payment of royalties for their members. According to the collecting societies, Airfield made a communication to the public for which the consent of the collecting societies' members had not been obtained and hence royalties were due. According to Airfield, however, there was only a single communication to the public initiated by the broadcasters and if they paid royalties to the collecting societies, no extra payment could be due by the satellite operator.
Because the communication to the public via satellite is governed by the EU Satellite and Cable Directive N° 93/83/EEC, the Brussels Court of Appeal referred the case to the Court of Justice for a preliminary ruling. In its decision of 13 October 2011 in joint cases C-431/09 and C-432/09, the Court of Justice ruled that article 2 of the Satellite and Cable Directive N° 93/83/EEC “must be interpreted as requiring a satellite package provider to obtain authorization from the right holders concerned for its intervention, in the light of 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 organization 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”.
Four years following the preliminary ruling, the Brussels Court of Appeal had to issue its final award and it rejected the claims of the collecting society AGICOA. The Court ruled that both the direct and indirect transmissions of television programmes by Airfield (now Eviso) fulfil all the cumulative conditions of the Satellite and Cable Directive N° 93/83/EEC and that each of them must therefore be regarded as constituting a single communication to the public by satellite and thus as indivisible.
The Court of Appeal then turned to the question of the new public: did the right holders agree with the broadcasters that the protected works could be communicated to the public via the satellite broadcasts of Airfield or does Airfield reach a new public that the right holders did not have in mind when they granted authorization to the broadcasters for the public communication of their works. After examining all the evidence submitted by the parties, the Court came to the conclusion that there is no evidence from the collecting society that Airfield did not obtain the consent of the copyright owners. In other words, the Court found that, according to the contracts, Airfield had obtained the consent from the copyright owners for the satellite broadcasts of the television programmes. There is no new public for which a new consent must be sought.
The case may still be referred to the Belgian Supreme Court (Cour de Cassation/Hof van Cassatie), which will have the final say.
