The matter at hand

SBS Belgium is a commercial broadcasting organisation which broadcasts its programmes exclusively by a technique named direct injection. This is a two-step process by which SBS transmits its programme-carrying signals ‘point to point’ via a private line to its distributors. At that stage, those signals cannot be received by the general public. The distributors then send the signals to their subscribers so that the latter can view the programmes on their television sets.

SABAM is a copyright administration society which represents authors in relation to the grant of permission for third party use of their copyright-protected works and in the collection of the fees for such use. It takes the view that SBS, as a broadcasting organisation, makes a communication to the public within the meaning of Article 3 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 by transmitting via the direct injection method. Therefore, the authorisation of the copyright holders is required. SABAM requested, as compensation, the payment of a sum of money and brought an action against SBS.

In the proceedings which ensued, the Court of Appeal in Brussels decided to refer the question to the ECJ whether a broadcasting organisation which transmits its programmes exclusively via the technique of direct injection makes a communication to the public within the meaning of Article 3 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.

The judgment of the ECJ

The ECJ recalls that it has previously held that ''the concept of ‘communication to the public’ includes two cumulative criteria, namely, an ‘act of communication’ of a work and the communication of that work to a ‘public’'' (paragraph 15). As regards the ‘act of communication’, ''that refers to any transmission of the protected works, irrespective of the technical means or process used'' (paragraph 16). It follows that the transmissions made by SBS must be considered to constitute ‘acts of communication’, 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 19).

In the second place, if the protected works are to fall within the definition of ‘communication to the public’, they must also actually be communicated to a ‘public’. In that regard, it is apparent from the ECJ’s case law ''that the term ‘public’ refers to an indeterminate number of recipients, potential television viewers, and implies, moreover, a fairly large number of persons'' (paragraph 21). However, in the underlying case, SBS transmits the programme-carrying signals to specified individual distributors without potential viewers being able to have access to those signals. Consequently, the works transmitted by SBS are not communicated to the ‘public’, but to specified individual professionals (paragraph 23). Given the cumulative nature of the two criteria for a communication to the public, the transmissions made by SBS do not, in principle, come within the definition of ‘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 24).

The ECJ nevertheless emphasises that ''it cannot be ruled out from the outset that in some situations the subscribers of distributors may be considered to be the ‘public’ in relation to the original transmission made by the broadcasting organisation'' (paragraph 25). In that regard the ECJ points out that it has previously (in Airfield and Canal Digitaal C-431/09 and C-432/09) ''held that the distribution of the work broadcast by a professional, amounts to the supply of an autonomous service performed with the aim of making a profit, the subscription fee being paid by those persons not to the broadcasting organisation but to that professional, and being payable not for any technical services, but for access to the communication in question and, therefore, to the copyright-protected works'' (paragraph 30). If this situation occurs, the professional is responsible for the communication to the public, since the transmission he makes ''is not just a technical means of ensuring or improving reception of the original broadcast in its catchment area'' (paragraph 31). However, if ''a distributor finds itself in a position that 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, the subscribers of the distributors in question could be considered to be the public for the purposes of the communication made by the broadcasting organisation, with the result that the broadcasting organisation and not the distributor would make a ‘communication to the public’'' (paragraphs 32 and 33).

 In light of these considerations, the ECJ confirms 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 must be interpreted as meaning that a broadcasting organisation does not carry out an act of communication to the public when it transmits its programme-carrying signals exclusively to signal distributors without those signals being accessible to the public during and as a result of that transmission, those distributors then sending those signals to their respective subscribers so that they may watch those programmes, unless the intervention of the distributors in question is just a technical means, which it is for the national court to ascertain'' (paragraph 34).