On 13 October 2011, the Court of Justice of the EU (the “ECJ”) answered a number of preliminary questions referred to it by the Court of Appeal of Brussels (joined cases C-431/09 Airfield NV and Canal Digitaal BV v. Sabam and C-432/09 Airfield NV v. Agicoa Belgium BVBA). The ECJ judgment clarifies when a satellite package provider requires an authorisation of its own in addition to the authorisation already obtained by broadcasters.
The facts underlying the judgment relate to two cases brought by Belgian collecting societies, Agicoa Belgium BVBA (“Agicoa”) and Belgische vereniging van auteurs, componisten en uitgevers CVBA (“Sabam”) (See, VBB on Belgian Business, Volume 2009, No. 11, p. 5 and Volume 2011, No. 3, p. 9, available at www.vbb.com). Both collecting societies sued satellite operator Airfields NV which operates a satellite broadcasting service in Belgium under the commercial name TV Vlaanderen, and its technical partner, Canal Digitaal BV. The collecting societies claimed that Airfields and Canal Digitaal had not obtained approval from the copyright holders for the transmission of broadcasters' programmes by satellite.
The initial broadcasters had acquired such a license from copyright holders to deliver the relevant programmes to the broadcasters’ audience. However, in addition, the programmes were retransmitted by Airfield which used Canal Digitaal's installations to deliver the programmes to Airfield’s customers via satellite. The retransmission of the programme-carrying signals takes the form of either indirect transmission – where Canal Digitaal scrambles or rescrambles the signals before beaming the signals up to the satellite – or direct transmission – where the broadcasting organisations scramble the signals themselves. The Brussels Court of Appeal referred questions to the ECJ to find out whether retransmission rights for broadcasting are cleared through the initial authorisation.
The ECJ analysed the definition of ‘communication to the public’ contained in Article 1 (2) (a) and (c) of Directive 93/83 of 27 September 1993 on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable transmission (“Directive 93/83”) to determine whether the intervention by the satellite package providers amounts to a separate communication to the public.
The ECJ examined the direct and indirect transmissions and considered that the programme-carrying signals are introduced under the control and responsibility of the broadcasting organisation. According to the ECJ, it is thereby not required under Article 1 (2) (a) and (c) of Directive 93/83 that the broadcasting organisation should have the exclusive control and responsibility for introducing the signal in the satellite communication. Moreover, the ECJ maintained that the rescrambling done by the satellite package provider in the indirect transmission constitutes a normal technical procedure. In addition, the ECJ held that the only intervention is the supply of access keys and this is not capable of interrupting the chain of communication. The ECJ concluded that the direct and indirect transmission constitutes a single, indivisible communication by the public unless the devices for decrypting the broadcasts are provided to the public not by the broadcasting organisations but by the satellite package provider. Whether the satellite package provider supplies those devices to the public without the broadcasting organisations’ consent must be verified by the national court.
The ECJ clarified that the indivisibility of the communication to the public does not mean that the intervention of the satellite package provider can occur without the authorisation of the right holders concerned. Indeed, under Article 2 of Directive 93/83, copyright holders must authorise any communication of the protected works to a public by satellite. The ECJ held that this authorisation must be obtained (i) by a person who triggers such a communication; or (ii) “who intervenes when it is carried out, so that, by means of that communication, he makes the protected works accessible to a new public”.
In the case at hand, the ECJ considered that the activity of the satellite package providers constitutes an intervention without which the subscribers would not be able to enjoy the broadcast works. According to the ECJ, such an intervention amounts to the supply of an autonomous service with the aim of making a profit since the subscribers pay their fee to the satellite package provider and not to the broadcaster. Also, the satellite package provider determines the composition of the package which it offers to its subscribers. As a result, the ECJ held that the satellite package provider expands the circle of persons having access to the television programmes and therefore requires the authorisation of right holders.
