Some broadcasters no longer broadcast directly to the public. Instead, a broadcaster will supply their channels and programming output to ‘distributors’ such as the cable, telephone, and satellite TV companies. Subscribers to the services provided by these distributors can then watch the broadcaster’s output. This does however generate a question of copyright law. Namely, for the purposes of the EU’s InfoSoc Directive 2001/29/EC, who is making a ‘communication to the public’? Is it the broadcaster? Or is it the distributor? Or could it be both?
SBS Belgium is a company that makes and broadcasts television programmes in Dutch, the language widely spoken in the Flanders region of Belgium.
Besides making its own programmes, SBS Belgium also runs two private commercial stations respectively known as ‘FOUR’ and ‘FIVE’ [VIER and VIJF]. These stations broadcast programmes that originate not only from SBS Belgium but they also include programmes which SBS Belgium buys-in from other domestic and foreign companies that supply programming content.
The legal issue here is one of copyright. Generally, programmes contain a raft of copyright-protected works, and rights holders can invoke copyright law to stop those works from being communicated to the public without their consent, something which is normally available at a price.
The question here is whether SBS Belgium needs the consent of the right holders for its broadcasts. The twist is that SBS Belgium is doing something relatively new. That is to say, it is not directly delivering its content to its viewers but the content is reaching them indirectly via ‘distributors’ – the cable, telephone, and satellite TV companies with whom their viewers have a contractual relationship.
The answer depends on how copyright law’s concept of a ‘communication to the public’ is defined. The rights holders claim that SBS Belgium is indeed making a communication to the public, and consent is required – which for a period of 12 months in 2009, equates to just shy of a million euro. SBS Belgium deny that they are making a communication to the public so no consent is required, and no money is owing.
The dispute between SBS Belgium and the rights holders has been escalated up to the Brussels Court of Appeal.
In their referring order, the three judges explain that the concept of a ‘communication to the public’ is laid down in the EU’s InfoSoc Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society.
Article 3 provides:
Right of communication to the public of works and right of making available to the public other subject-matter
1. Member States shall provide authors with the exclusive right to authorise or prohibit any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them.
3. The rights referred to in paragraphs 1 and 2 shall not be exhausted by any act of communication to the public or making available to the public as set out in this Article.
Besides the InfoSoc Directive, a further piece of EU legislation mentions a slightly different concept: ‘a communication to the public by satellite’. This concept is enshrined in the EU’s ‘SatCab’ Directive 93/83/EEC on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission. The relevant provisions read:
Definitions 1. For the purpose of this Directive, ‘satellite’ means any satellite operating on frequency bands which, under telecommunications law, are reserved for the broadcast of signals for reception by the public or which are reserved for closed, point-to-point communication. In the latter case, however, the circumstances in which individual reception of the signals takes place must be comparable to those which apply in the first case.
2. (a) For the purpose of this Directive, ‘communication to the public by satellite’ means the act of introducing, under the control and responsibility of the broadcasting organization, the programme-carrying signals intended for reception by the public into an uninterrupted chain of communication leading to the satellite and down towards the earth.
(b) The act of communication to the public by satellite occurs solely in the Member State where, under the control and responsibility of the broadcasting organization, the programme-carrying signals are introduced into an uninterrupted chain of communication leading to the satellite and down towards the earth.
(c) If the programme-carrying signals are encrypted, then there is communication to the public by satellite on condition that the means for decrypting the broadcast are provided to the public by the broadcasting organization or with its consent
Article 2 of the SatCab Directive also provides:
Broadcasting right Member States shall provide an exclusive right for the author to authorize the communication to the public by satellite of copyright works, subject to the provisions set out in this chapter.
The three appellate judges in the Brussels’ court also recognised that this legislative framework and the CJEU’s case law could be interpreted in different ways.
In essence, the parties’ submissions are these. SBS understands EU law to support its view that it is not making a communication to the public. It points out that its programme-carrying signals can only be picked up by cable, telephone, and satellite TV companies with the aid of professional equipment. This prevents their act of communication from being a communication to the ‘public’ since there is no ‘public’ by dint of Case C-192/04, Lagardère Active Broadcast. On this point about professional equipment, SBS Belgium also derives support for its legal argument from case law stemming from Belgium’s Court of Appeal in Antwerp, and from the Dutch Supreme Court.
SBS Belgium also claims that its legal argument is unaffected by the CJEU’s recent judgment in Case C-431/09, Airfield. They distinguish the present situation from the facts in that case. Namely, in the Airfield case, the broadcasting organisations were making direct broadcasts to the public, alongside directly injecting signals into satellite distributor. This, they say, was a special situation in which there was a simultaneous initial broadcast. This also explains why the test for liability under the CJEU’s judgment in Airfield is whether works arrive at ‘a new public’ additional to the originally-intended target audience of the broadcaster. SBS says that the Airfield judgment is simply not relevant in this case because SBS Belgium is direct injecting into a cable system. They also raise a broader point, namely, that the CJEU’s judgment in Airfield turned on Article 2 of the SatCab Directive and not Article 3 of the InfoSoc Directive, which is at stake in this case.
SBS Belgium’s interpretation of EU law is, however, rejected by the right holders. The right holders claim that injecting the television programmes into the physical infrastructure of a third-party distributor means that the broadcaster is making a communication to the public because this is the way in which the programmes are effectively made known to the public. The third-party distributor is doing nothing other than providing technical assistance. Whether that third-party has its own copyright-relevant role to play alongside its role of providing technical assistance is completely irrelevant for present purposes and does not detract from the fact that it is the broadcasting organisation which is either making the ‘primary communication’ or committing the ‘complete act of communication’.
In that context, the right holders also rely on the CJEU’s judgment in Airfield. They say that Airfield is relevant because in that case too there was a company which was a directly-injecting broadcasting organisation. Consequently, the CJEU’s Airfield judgment can be applied just as well to direct injections into the networks of satellite distributors, and direct injections into the networks of cable companies or xDSL line splitters.
In light of those submissions, the Brussels Court of Appeal noted the uncertainty surrounding the concept of ‘communication to the public’ and wondered whether that concept applied to the present situation in which a broadcasting organisation was broadcasting via direct injection to a variety of distributors. Since the concept of a communication to the public was one harmonised by EU law it was necessary to make a reference to the CJEU.
Almost by way of postscript, the Brussels Court of Appeal added that it was aware of ongoing litigation in both the Belgian and Dutch courts which might also lead to further prejudicial questions being asked of the CJEU.
My unofficial translation of the question asked by the Brussels Court of Appeal reads:
Does a broadcasting organisation make a communication to the public under Article 3 of Directive 2001/29/EC of the European Parliament and of the Council on the harmonisation of certain aspects of copyright and related rights in the information society when the broadcasting organisation broadcasts its programmes exclusively using the technique of direct injection – a two-stage process whereby it supplies its (satellite, cable or xDSL) distributors with its encrypted programme-carrying signals via satellite, fibre optic connection or some other means of transport, but without those signals being accessible to the public either during the supply or in relation to it, and whereupon those distributors subsequently send those signals to their subscribers so that the latter might watch the programmes?
This reference from the Brussels Court of Appeal could have been more transparent. For example, the Brussels Court of Appeal mentions the CJEU’s judgment in ‘Airfield’ but it does not generally specify which paragraphs in that judgment might be relevant. This is regrettable because the reasoning in Airfield is not particularly clear. See further, Airfield, Intermediaries and the Rescue of EU Copyright Law.
Moreover, what is an EU citizen (or their legal representative) to make of SBS Belgium’s reliance on the existing case law of the Dutch Supreme Court and the Belgian courts which concern right holders and distributors? Admittedly, the Brussels Court of Appeal indicates the websites in which those Dutch judgments are to be found but it fails to outline what those cases were about. The Belgian judges also fail to explain how, if at all, the CJEU’s case law was applied in those cases, and they provide no indication of what they understand those Dutch and Belgian judgments to mean.
Equally frustrating is that the Brussels Court of Appeal takes the trouble to warn the CJEU of the existence of other on-going litigation in both the Dutch and Belgian courts, and it alerts them to the possibility that these disputes are capable of generating further prejudicial questions being asked of the CJEU but the judges do not inform the CJEU or the EU public as to the scope of those disputes other than to say they concern rights organisations and cable companies.
Update – 10 May 2015
The Ninth Chamber is due to hear this case on 10 June 2015.