Transmission by cable operator in the national territory of programmes broadcast by national broadcasting does not constitute a communication to the public

C-138/16

AKM v Zürs.net

Copyrights: Communication to the public

16 Mar 2017

The matter at hand

Zürs.net operates a cable network installation in Austria by means of which it transmits TV and radio broadcasts of the national broadcasting corporation ‘ORF’. Approximately 130 subscribers are connected to Zürs.net’s cable network.

Zürst.net, however, refused to pay the Austrian copyright collecting society AKM the appropriate licencing fee, arguing that under Austrian copyright law no authorisation from the copyright holders is required for:

a simultaneous, full and unaltered cable transmission of programmes broadcast by the national broadcasting corporation in the national territory;
a broadcast by means of an communal antenna installation, where the number of subscribers connected to that antenna does not exceed 500.

In subsequent proceedings initiated against Zürs.net by AKM, the Commercial Court of Vienna referred the case to the ECJ for a preliminary ruling concerning the conformity of these Austrian provisions with Articles 3(1) and 5 of the Copyright DirectiveDirective 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society and Article 11bis(1)(ii) of the Berne Convention.

The judgment of the ECJ

The ECJ starts by assessing whether the transmission by cable in the national territory of programmes broadcast by a national broadcasting organization, constitutes a communication to the public within the meaning of Article 3(1) of Directive 2001/29.

In this regard, the ECJ recalls that the concept of ‘communication to the public’ includes two cumulative criteria, namely, an ‘act of communication’ of a work and the communication thereof to a ‘public’. Furthermore, the ECJ rules that it follows from its judgment in Reha Training (C-117/15) that, in case of a transmission of protected works by a body other than that which had obtained the original authorisation from the copyright holder, that transmission must be directed at a ‘new’ public.

Considering that “the transmission at issue is made through cables, that is to say, by a technical means different from that used for the initial broadcast transmission”, the ECJ establishes that Zürs.net indeed performs an ‘act of communication’ (paragraph 26).

The ECJ, however, continues by ruling that the public to which Zürs.net distributes the protected works cannot be regarded as a ‘new’ public, considering that “when they grant a broadcasting authorisation to ORF, the rightholders concerned are aware that the broadcasts made by that national corporation may be received by all persons within the national territory” (paragraph 28). “Given that the distribution of the protected works by means of cables is carried out (…) on the national territory and that the persons concerned have therefore been taken into account by the rightholders when they granted the original authorisation for the national broadcaster to broadcast those works, the public to which Zürs.net distributes those works cannot be regarded as a new public” (paragraph 29).

Therefore, according to the ECJ, Zürs.net’s transmission of broadcasts of the national broadcasting organization within the national territory does not constitute a communication to the public within the meaning of Article 3(1) of the Copyright DirectiveDirective 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (paragraph 30).

This leads the ECJ to conclude, in the operative part of the judgment, that Article 3(1) of the Copyright DirectiveDirective 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society and Article 11bis of the Berne Convention “must be interpreted as not precluding national legislation, such as that at issue in the main proceedings, which provides that the simultaneous, full and unaltered transmission of programmes broadcast by the national broadcasting corporation, by means of cables on national territory, is not subject, under the exclusive right of communication to the public, to the requirement that authorisation be obtained from the author, provided that it is merely a technical means of communication and was taken into account by the author of the work when the latter authorised the original communication, this being a matter for the national court to ascertain”.

As regards the broadcasts by means of Zürs.net’s ‘communal antenna installation’ to a maximum of 500 subscribers, the ECJ notes that these also cover, in addition to the ORF broadcasts, the broadcasts of other broadcasters established in other Member States. Considering that, when the rightholders concerned granted the original authorisation to the latter, foreign, broadcasters, they did not take the Austrian public into account, the ECJ holds that the transmission of foreign broadcasts to the Austrian public does constitute a communication to a new public.

In those circumstances, the ECJ examines whether the exception in Austrian law allowing, without authorisation of the rightholders, works to be broadcast to a maximum of 500 subscribers, is covered by Article 5(3)(o) of the Copyright DirectiveDirective 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, which states that Member States may provide for exceptions to the right of communication to the public, ‘in certain cases of minor importance where exceptions or limitations already exist under national legislation, provided that they concern analogue uses only and do not affect the free circulation of goods and services within the European Union’.

According to the ECJ, this is not the case here, considering that the relevant Austrian legislation “is likely to attract economic operators wishing to take advantage of it, and to lead to the continuous and parallel use of a multiplicity of communal antenna installations. Consequently, this could result, over the whole of the national territory, in a situation in which a large number of subscribers have parallel access to the broadcasts distributed in that way (paragraph 40). Thus, the Austrian legislation due to its cumulative effect cannot be regarded as being ‘a use in certain cases of minor importance’ within the meaning of Article 5(3)(o).

Commentary

Everybody makes mistakes and it seems the ECJ, ruling in a small chamber without asking the opinion of the Advocate-General, made one here by applying the criterion of a ‘new public’ to the cable transmission by Zürs.net of programmes broadcast by the Austrian broadcasting organization. After all, the ECJ has previously held that the requirement of a ‘new public’ does not apply in cases where the relevant (re)transmission uses a specific technical means different from that of the original communication.

This follows clearly from the ECJ’s judgment in ITV/TV Catchup, in which the ECJ held that the internet retransmission of a TV signal within the reception area of the original broadcast constitutes a communication to the public. Reference is made, in particular, to paragraph 39 of that judgment, in which the ECJ held that, in circumstances where a (re)transmission is made “under specific technical conditions, using a different means of transmission” than the original broadcast, “it is no longer necessary to examine (…) the requirement that there must be a new public”. This rule is repeated in case-law following the ECJ’s judgment in Zürs.net, namely in two other judgments summarized in this book (Brein v Filmspeler, C-527/15 and Brein v Ziggo and Xs4All, C-610/15) in which the ECJ held that “to be categorised as a ‘communication to the public’, a protected work must be communicated using specific technical means, different from those previously used or, failing that, to a ‘new public’.”

Therefore, considering that in paragraph 26 of the judgment in AKM/Zürs.net the ECJ established that “the transmission at issue is made through cables, that is to say, by a technical means different from that used for the initial broadcast transmission”, the ECJ should not have applied the criterion of a ‘new public’.

In this connection it is noteworthy that the ECJ, in the operative part of its judgment, suddenly introduces a further condition, not mentioned at all in its reasoning, under which Zürs.net’s transmission does not constitute a communication to the public, namely “that it is merely a technical means of communication”. This seems to echo the criterion given by the ECJ in SBS/SABAM (C-325/14), in which the ECJ held that it is not inconceivable that a distributor might find itself in a position that it is not independent in relation to the broadcasting organisation and where its distribution service is purely technical in nature, with the result that its intervention is just a technical means of ensuring or improving reception of the original broadcast in its catchment area. In that case, the distributor indeed does not perform an act of communication to the public, only the broadcasting organisation does. There is, however, nothing in the ECJ’s reasoning in its judgment in Zürs.net indicating that the ECJ considered Zürs.net’s intervention to be just a technical means of ensuring or improving reception of the original broadcast in its catchment area.